PR957914 PR957914 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.113 applications for variation s.107 reference to Full Bench Australian Liquor, Hospitality and Miscellaneous Workers Union CHILD CARE INDUSTRY (AUSTRALIAN CAPITAL TERRITORY) AWARD 1998 (ODN C No. 03697 of 1985) [AW772250CRA Q2724] (C2002/5237) CHILDREN'S SERVICES (VICTORIA) AWARD 1998 (ODN C No. 20079 of 1993) [AW772675CRV R0954] (C2003/4271) Industries not otherwise assigned VICE PRESIDENT ROSS SENIOR DEPUTY PRESIDENT MARSH COMMISSIONER DEEGAN MELBOURNE, 10 MAY 2005 Wage rates - classification structure - first aid allowance - translation issues - phase in of increases. DECISION Introduction [1] These proceedings are the final phase in the determination of two applications (C2002/5237 and C2003/4271) by the Australian Liquor, Hospitality and Miscellaneous Workers Union (now the Liquor, Hospitality and Miscellaneous Union) (the LHMU or the Union). The applications sought to vary the Child Care Industry (Australian Capital Territory) Award 1998 (the ACT Award ) and the Children's Services (Victoria) Award 1998 (the Victorian Award ) in relation to wage rates, classification structure, new allowances and the award titles. The relevant background is set out in two decisions of the Commission as presently constituted, dated 13 January 2005 1 and 13 April 2005 2 . [2] Four matters arise for determination: (i) The finalisation of the orders giving effect to the decisions of 13 January and 13 April 2005 (the finalisation of the orders ); (ii) The arrangements governing the translation from the current classification structures to the new classification structures (the translation issues ); (iii) The operative date of the new classification structures and the phasing in of associated wage increases (the operative date and phasing in ); and (iv) The Union's first aid allowance claim (the first aid allowance ). [3] Each of these matters is dealt with in turn in the balance of this document. The finalisation of the orders [4] In our decision of 13 April 2005 we directed the parties to confer on the final form of the orders to be issued in these proceedings having regard to that decision. Draft agreed orders were to be filed by 4.00 pm on Wednesday, 20 April 2005. Any areas of disagreement not resolved in conciliation before Commissioner Simmonds were to be determined in these proceedings. [5] The draft orders were filed by the LHMU as directed and are substantially agreed. The ACT Award [6] A copy of the LHMU's draft order in respect of the ACT Award is set out at Attachment 1. [7] The ACT Children's Services Association and Communities @ Work (the ACT Employers) agree with the draft orders except in respect of the following items: clause 5.1.1(g) the change in the introductory paragraph that is underlined is not agreed; clause 5.1.6 translation arrangements are not agreed; clause 5.1.6(d) the phasing in arrangements are not agreed; and clause 5.5.2(a)(iii) first aid allowance - that part of the clause that deals with the reimbursement of costs is not agreed. [8] We return to the first item shortly, the other matters are dealt with later in this document. [9] In respect of clause 5.5.1(g) the previously agreed classification descriptor for the new classification Level 5 was as follows: "This is an employee who has completed an [AQF 5] Diploma in Children's Services or equivalent and is appointed as an Assistant Director of a service or, in the ACT is appointed as a: Family Day Care Coordinator, Family Day Care Trainee Supervisor, Playgroup Leader, or School Age Care Coordinator" [10] In its draft orders the LHMU seeks to amend the introduction to read: "This is an employee who has completed an [AQF 5] Diploma in Children's Services or equivalent, who is a Team Leader who supervises Level 4 employees , and/ or is appointed as an Assistant Director of a service, or is appointed as: Family Day Care Coordinator, Family Day Care Trainee Supervisor, Playgroup Leader, or School Age Care Coordinator" [11] The LHMU contends that the deletion of the descriptor during the conciliation process chaired by Commissioner Simmonds was a drafting oversight which should not be allowed to stand. It is submitted that the proposal is based on the current structure of the ACT Award , which in part reflects licensing requirements, but which also reflects the long-standing industrial principle that a supervisor is entitled to be paid at a higher rate than the employees he or she supervises. [12] The LHMU contends that supervision is dealt with hierarchically in the current ACT Award . [13] The duties of a: Child Care Workers Level 3 are expressed to include the following: co-ordinate and direct the activities of unqualified workers engaged in the implementation of programs and activities in a group setting. The duties of a Child Care Worker Level 4 are expressed to include Level 3 employees who undertake additional responsibilities "such as" : general supervision of other workers. The duties of a Child Care Worker Level 5 are expressed to include "some or all" of a number of duties which include: supervising qualified and unqualified workers. [14] Thus it is argued that Level 3 embraces the "coordination and direction" of unqualified workers; Level 4 embraces "general supervision" of "other workers" ; and Level 5 embraces supervision of "qualified" - that is, Level 3 and Level 4 - workers. [15] It is generally agreed that there will be circumstances in which two "designated team leaders" are required by the ACT Regulations. The LHMU submits that these circumstances will be limited. This is said to be so because in the 0 to 3 years group, the ACT Regulations define a group of children as ten children 3 . Regulation 20 of the ACT Centre Based Children's Service Conditions provides that where a group comprises twenty children under three years of age, the "Minimum Staff and Qualifications" requirements are: "Two qualified and designated team leaders each holding: a Diploma in Community Services (Children Services) or equivalent; or an accredited tertiary course in early childhood care or education; and two assistants with no qualification requirement." [16] In such circumstances, "two designated team leaders" will be working together. Each will be "in charge of a group of children" and thus meet the descriptors for both the current and proposed Level 4. However the LHMU submits that in most cases one of the two will be designated by the employer as the person in charge - and will be "supervising qualified and unqualified employees" within the meaning of the current descriptors for Level 5. [17] Where the person in charge is already classified at Level 5 - for example, because they are the Assistant Director - no issue arises. Where at least one of the "two designated team leaders" is not an Assistant Director and is not otherwise within the Level 5 descriptors then the LHMU's proposed amendment to the agreed descriptors has effect. [18] The LHMU contends that rather than having two Level 4 employees, one of the two - either the person designated by the employer to "supervise qualified and unqualified workers" 4 or the person who in fact undertakes this role - will need to be classified at Level 5. This is the effect of the current Award descriptors, and it is submitted that it is fair and reasonable. The LHMU draft order seeks to maintain an existing entitlement inadvertently omitted in the April-May 2005 drafting process. [19] Prior to 1990, the Child Care Industry (Northern Territory) Award 1986 5 (the NT Award ) provided in clause 8 for supervisory rates, payable to a "Leading Hand/Supervisor" in charge of employees. In Print J4316, dealing with the NT Award and the Child Care Industry (Australian Capital Territory) Award 1985 6 a Full Bench of the Commission considered a union submission that the allowances should be adjusted by 3 per cent in accordance with the Structural Efficiency Principle. The Full Bench rejected the claim: "We do not agree. The qualifications for persons employed in the industry will now be found in the classification structure in annexure A and we consider that these allowances should be phased out 7 ." [20] The new classification structure approved for the ACT Award by the 1990 Full Bench provided for an ascending scale of supervisory responsibility - in Levels 3, 4 and 5 - in lieu of traditional supervisory or leading hand-type allowances. The LHMU submits that the proposed amendment to the Level 5 descriptor is justified on merit, as it would properly reflect the supervisory responsibility envisaged for Level 5 8 . [21] The ACT Employers are opposed to the LHMU proposal and reject the Union's interpretation of the licensing requirements and the terms of the current ACT Award . The Employers submit that if the LHMU's interpretation were correct then there would have to be at least one level 5 employee in each centre or service and this is not the case. [22] The ACT licensing document "Conditions for Approvals in Principle and Licenses" 9 provides as follows: "Qualified Staff 3.18 One in every two primary contact staff must be qualified. Qualifications 3.19 There must be a designated qualified team leader for each group of children 3.20 Positions requiring a qualified person, must be filled by an adult holding one of the following qualifications: (a) a Diploma in Community Services (Children's Services) or equivalent or (b) an accredited tertiary course in early childhood services or education." [23] The ACT Employers contend that under ACT licensing the requirement is that each group of children must have a qualified team leader assigned to it. The group could be regarded as a room of children or the whole centre or service for the purpose of license compliance. In most circumstances the team leader is the Level 4 qualified employee. In some circumstances, however, the number of children in the group (or centre or service) may require more than one qualified person in order to comply with condition 3.18 set out above. [24] It is submitted that these circumstances are dealt with on pages 39 to 40 of the licensing document 10 . Under "Minimum Staff and Qualifications Options" examples are offered for various staffing configurations. For example, where there are twenty children under the age of three in a group, an acceptable staffing configuration is: "Two qualified and designated team leaders each holding: a Diploma in Community Services (Children's Services) or equivalent; or an accredited tertiary course in early childhood services or education and two assistants with no qualification requirement." [emphasis added] [25] Where there are more than twenty-two children (maximum thirty-three children) over the age of three, an acceptable configuration is: "Two qualified staff (one of whom is designated as the team leader): each holding a Diploma in Community Services (Children's Services) or equivalent; and One assistant with no qualification requirement." [26] On this basis it is argued that the designation "Team Leader" can apply to: a single qualified employee in charge of a group of children; one of a pair of qualified employees in charge of a group of children; or two qualified employees in charge of a group of children. [27] Further, for licensing purposes, a "group of children" can be regarded as a room of children or the whole centre or service. The ACT Employers submit that nothing relevant to the classification of individual employees can be relied on under ACT licensing requirements because the designated Team Leader is not a supervisory role. It is, rather, a licensing construct. [28] The classification descriptor for a Child Care Worker Level 4 under the current ACT Award provides as follows: "5.1.1(f) CHILD CARE WORKER LEVEL 4 means an employee who holds either a Diploma in Children's Services, or an equivalent qualification which is recognised under the Act. Duties would include some or all of the following: any of the duties of a Child Care Worker Level 3; work as the person in charge of a group of children in the age range from birth to 12 years; take responsibility in consultation with the Director for the preparation, implementation and evaluation of a developmental program for individual children or groups of children in care; co-ordinate and direct the activities of workers engaged in the implementation and evaluation of developmental programs and activities in a group setting; contribute, through the Director, to the development of the centre or services policies. Alternatively this person may hold the same qualifications as set out for a Child Care Worker Level 3 but undertake additional responsibilities such as the co-ordination of the activities of more than one group of children; general supervision of other workers; assisting in centre or service administrative functions." [29] The ACT Employers submit that the second and third indicative duties clearly refer to the qualified employee in charge of a group of children as contemplated by ACT licensing. It is also submitted that the final indicative duty refers to the circumstance where the qualified employee is designated as the team leader. [30] The LHMU also refers to the indicative duties of a Child Care Worker Level 5 to support its argument. The relevant extract from the ACT Award is: "5.1.1(g) CHILD CARE WORKER LEVEL 5 means an employee who holds as a minimum a Diploma in Children's Services or equivalent or Graduate Certificate in Child Care Centre Management, or an equivalent qualification which is recognised under the Act. Progression to Level 5 will require the completion of 200 hours in-service training from a recognised body/s prior to appointment to Level 5. Alternatively this employee shall possess, in the opinion of the employer, sufficient knowledge and experience to perform the duties at this level. Duties would include some or all of the following: any of the duties of Child Care Worker Level 4; carrying out the work of an Assistant Director (This position may only be necessary in a centre where there is a Director Level 3.); supervising qualified and unqualified workers; planning and co-ordinating in-service training for the centre or service; planning and implementing special programs such as integrating children with disabilities or children of a non-English speaking background. A Child Care Worker Level 5 shall also include a person, employed to manage an Out of School Hours service with no more than 39 children, whose responsibility is limited to the planning of the program and supervising staff. A Child Care Worker Level 5 shall also include a Family Day Care Co-ordinator. A Family Day Care Co-ordinator means an employee who works under general direction to monitor, support and resource a number of child care situations, involving children, family based child care workers and parents. A person working at this level would hold an Associate Diploma in Child Care or other relevant field of experience. Alternatively this employee shall, in the opinion of the employer, have sufficient knowledge and experience to perform the duties at this level. Task level Duties would include some or all of the following: Visiting assigned family based child care workers on a regular basis. Supporting, resourcing and monitoring the family based child care worker. Answering parent/guardian enquiries and interviewing parents requiring child care. Participating in the selection of family based child care workers including home interviews and home safety checks. Arranging the placement of children into care. Maintaining effective communication with parents/guardians of children receiving care. Liaising with other agencies and community groups as required. Attending to administrative matters. Providing training for family based child care workers." [31] The ACT Employers note that the Union relies particularly on the words "supervising qualified and unqualified workers" to support its contention. It is said in circumstances where the Level 5 employee was performing the role of Assistant Director then clearly the employee's responsibilities would include the supervision of qualified staff. Indeed, there may be other circumstances where the Level 5 employee supervises qualified staff but it is argued that this is not related to the designation of Team Leader under the ACT licensing requirements. [32] Finally the ACT Employers contend that if the Commission were to accept the Union proposition, a Team Leader in a room would be on the same classification and wage level as an Assistant Director who has a much broader range of responsibilities over the whole centre. An Assistant Director is specifically identified as an applicable classification at Level 5 when a Team Leader in the terms suggested by the Union is not. [33] We now turn to consider the submissions put. [34] In circumstances where two Level 4 employees are assigned to care for a group of children the ACT licensing requirement is that such a group must have a qualified "Team Leader" assigned to it. On the material before us it is not clear whether the "Team Leader" designation is merely a licensing construct, or whether it is intended that a person so designated necessarily assumes some supervisory responsibility with respect to other persons employed to care for the relevant group of children. [35] There is no evidence before us as to the number of instances in which the circumstance referred to has arisen. Nor is there any evidence as to how this issue is dealt with, in a practical way, at present. [36] Further, on a preliminary examination we think that the LHMU's proposal, namely that such employees be classified at Level 5 for such time as they are supervising the work of Level 4 employees, may not be appropriate, for two main reasons: 1. The effect of the LHMU's proposal is to provide a "supervisory loading" of varying amounts depending on the increment level of the Level 4 employee. Hence a Level 4.1 employee (the `on commencement' level) supervising other Level 4 employees would receive an additional $35.90 per week (i.e. the difference between the rates of pay for levels 4.1 and 5.1). A Level 4.3 employee (the `after two years in the industry' rate) would only receive an additional $12.40 per week for performing the same function. 2. As the ACT Employers point out, if the LHMU's proposition is accepted a Team Leader in a room would be on the same classification and wage level as an Assistant Director who has a much broader range of responsibilities over the whole centre. On the limited material before us we are not persuaded that such an outcome is appropriate. [37] We think the best course is to remit this to Commissioner Deegan for determination. If the claim is pressed it will need to be supported by an appropriate evidentiary basis and justified on work value grounds. The Victorian Award [38] A copy of the LHMU's draft order in respect of the Victorian Award is set out at Attachment 2. [39] The Australian Childcare Centres Association Industrial Organisation of Employers, Childcare Centres Association of Victoria Inc. and the Victorian Private Childcare Association (the Victorian Employers) agree with the draft orders except in respect of the following items: clause 16.5 translation arrangements are not agreed; clause 16.5.4 the phasing in arrangements are not agreed; and clause 19.5.3 first aid allowance - that part of the clause that deals with reimbursement of costs is not agreed. [40] These matters are each dealt with later in this document. Translation issues [41] The LHMU's proposal with respect to the translation of employees from the current to the new classification structure is set out at clauses 5.1.6 and 16.5 of the draft orders relating to the ACT and Victorian Awards respectively. The translation arrangements proposed for each award are essentially the same. Clause 16.5.3 of the draft order for the Victorian Award states: 16.5.3 Translation 16.5.3(a) A n employee whose duties fall within the classification structure set out in this award should confer with his or her employer and seek to reach agreement on the translation of the employee to the terms of this award. 16.5.3(b) Employees will translate to the new classification structure on the basis of the following principles: except where otherwise provided in this clause, where an existing employee is appointed to a higher classification than they currently enjoy, they will translate to the "on commencement" rate for that classification; where an existing employee retains their existing classification, they will retain their current incremental position in that classification based on their years of experience in the industry; new employees, or current employees who are subsequently reclassified to a higher grade, will be paid at the "on commencement" rate for the classification to which they are appointed and will progress through the scale according to the factors listed in clause 16.6. 16.5.3(c) Despite clause 16.5.3(b): Existing CCW1 employees will be classified according to their duties and their years of experience in the industry. Thus an existing CCW1 employee with more than two years experience will be classified at the new CSE Level 2.2. A CCW2 employee with more than one year but less than two years experience will be classified at CSE Level 2.1. Existing CCW2 employees will be classified as either CSE Level 2 or CSE Level 3 employees depending on their qualifications and/or duties and their experience in the industry. Thus a Certificate III employee will be classified as Level 3, and one without Certificate III will (unless their duties fall within the Level 3 descriptors, in which case they will be classified as Level 3) be classified as Level 2. Both will be entitled to immediate recognition of their years of experience in the industry (ie, a Certificate III employee with more than two years of experience will be classified at CSE Level 3.3). Existing CCW3 employees will, depending on their qualifications and duties, be classified at either CSE Level 3, 4 or 5. Each will be entitled to immediate recognition of their years of experience in the industry. Existing CCW4 employees will, depending on their qualifications and duties, be classified as either CSE Level 4 or 5 employees. Each will be entitled to immediate recognition of their years of experience in the industry. [42] The Employers (that is the ACT and Victorian Employers) do not agree with the LHMU's proposed translation arrangements. The Employers' position, supported by Kindergarten Parents Association of Victoria (KPAV), is as set out in the Commission's decision of 13 April 2005 at paragraphs 154 to 157, namely: "[154] The Employers propose the following `Principles for Translation': `1. Employees translate to the new structure at the "on commencement" rate for the appropriate classification level. 2. For all employees employed in the Industry as at 1 July 2005:- progression through the incremental levels will be based on years of experience within the Industry and, in accordance with, the "Progression Clause" in the current Awards to be counted from 1 July 2005. 3. Employees employed in the Industry after 1 July 2005:- progression through the incremental levels will be based on years of experience within the Industry and, in accordance with, the "Progression Clause" in the current Awards with service counted from their anniversary date. 4. Progression between classification levels - employees shall start at the "on commencement" rate for each level." [155] It is argued that these principles ensure that whilst all employees gain a wage increase, they commence at the `on commencement' rate for each classification level and that longer term employees do not jump the scale unfairly. [156] It is submitted that the `on commencement' rate in each level of itself represents a significant increase and that all existing employees will progress through the incremental levels based upon years of service commencing from 1 July 2005. [157] The principles also provide for movement between classification levels." [43] A translation table in respect of both Awards is attached to the Employers' written submissions (at Appendix A, 1 and 2). [44] The Employers submit that the translation tables show that every employee at level 3 or above would receive a substantial wage increase even if they were translating from the highest pay scale in the current award structure to the proposed first `on commencement' step of the new classification rates. [45] The translation for employees at Levels 1 and 2 to the on commencement rates would mean that an employee at 1(a) with less than 12 months' service would receive an immediate increase of $6.00 per week and would then automatically move to Level 2.1 after 12 months. This would be an increase after 12 months of $28.30 per week. An employee at Level 1(b) would move to Level 2.1 with an increase of $12.90 per week and an employee at Level 1(c) would move to Level 2.1 with an increase of $7.80 per week. Level 2(a) would move to 2.1. Levels 2(b) and 2(c) would retain their existing rates (which would be preserved until after they have completed 12 months, when they would move to Level 2.2 with an increase of $16.90 or $6.60 respectively). Appendix A, shows the initial translation proposal and indicates the remaining increases for all other employees at Levels 3, 4, 5 and 6. The number of employees whose wage rates are effectively red-circled, (ie. unqualified employees at Levels 2(b) and 2(c), would be minimal and even then, this situation would only persist for a maximum of 12 months. [46] It is acknowledged that employees at Levels 2(b) and 2(c) without Certificate III qualifications will not receive a pay increase in the translation proposal in the first year (apart from any safety net increases) when they move to the first step of the new Level 2 (see Employers' translation table at Level 2.1). Their weekly wages will be maintained at their current rate for the first year, and after 12 months they will move to the next increment level that will deliver wage increases. However, it is argued that the number of these employees is not significant and the overall impact of the Employers' translation process is a very positive one for employees. [47] In reply the LHMU points out that the Employers' proposal cites no precedent for its essential component - that is, all employees will effectively have their service records wiped clean, and will start at the base rate of their appropriate classification, with consequential adjustment to their `anniversary' dates for incremental progression purposes. [48] In response to this submission the Employers referred us to a 1991 variation to the Child Care and Kindergarten Employers' Award - State . This was a decision by the Queensland Industrial Relations Commission (the QIRC) in which service was counted with effect from the date of the QIRC's decision for the purpose of determining the service increment to which an employee was entitled. We do not think that this decision provides much assistance in the determination of the issues before us. Three points may be noted in this regard: the implementation arrangements were by consent, and were hence not the subject of an arbitrated decision; it would appear that prior to the 1991 variation the relevant award did not provide for service increments. 11 Hence it would not be unexpected for service to accrue prospectively in such circumstances; and there is no suggestion in the QIRC decision that the service increments were based on work value considerations. Such increments are paid automatically "subject to satisfactory conduct, diligence and efficiency" . Different considerations apply in the matter before us. [49] In our view the LHMU's proposal in respect of translation from the current to the new classification structure is to be preferred to the proposal advanced on behalf of the Employers. [50] In our view the Employers' translation proposal is misconceived and ignores the fact that the classification structure determined by the Commission is work value based. The Commission has characterised its task in these proceedings in the following way: "[144] The applications before us require a determination of whether the wage rates in the relevant awards have been properly fixed. ..." 12 [51] The effect of our decision of 13 January 2005 was to increase the existing wage rates in the key classifications to properly fixed levels. Employees at these levels have not been "reclassified" as such; the vast majority will remain in their current level or classification, but will have their award wage increased over the phase in period until it reaches its properly fixed minimum rate. [52] The classification structure determined by the Commission is work value based. In relation to the Certificate III level - Level 3 in each of the two new awards - the Full Bench made a specific finding that the extent of work value evidenced in the proceedings "may warrant increases" in the `after 1 year' and `after 2 years' increment points. 13 The two increments in Level 3 at 105 and 110 per cent, respectively, of the base trade rate are consistent with the Commission's observations. [53] The Employers' translation proposal effectively ignores these findings as to work value. The proposals would place all Certificate III employees at the same level - Level 3.1 - whether they had less than one year, more than one year, or more than two years' experience. We do not accept the suggestion that recognising increased work value acquired through experience amounts to "jumping the scale unfairly", rather the Employers' proposals would ensure that longer-term employees are denied recognition of the increased value of their work. [54] We see no justification for artificially treating the proper fixation of minimum rates as a reclassification exercise. We have decided to adopt the LHMU's translation proposal. Operative date and phasing in [55] The LHMU proposes that the increases associated with the new classification structure be implemented in three equal instalments, subject to a requirement that if the first instalment would be $20 a week or less then the full increase, or at least $20, be paid. In essence the proposal is that the employee receives $20 a week extra or one third of the difference between the employee's current rate of pay and their appropriate (properly fixed) classification rate, whichever is the higher . The proposed operative dates for the three-phase implementation are 5 May 2005, 5 September 2005 and 5 January 2006. [56] The LHMU also proposes a dispute settlement mechanism in the following terms: 5.1.6(e) The employer and employee can agree to earlier implementation dates for wage increases than those set out in 5.1.6(d). 5.1.6(f) In the event that the employer and the employee cannot reach agreement as envisaged by 5.1.6(c) or (e), or in the event that a dispute arises as the transitional arrangements referred to in this clause, the procedures specified in clause 3.1 - Procedure to avoid industrial disputation must be followed. 5.1.6(g) Despite 5.1.6(f) and clause 3.1: 5.1.6(g)(i) an employer may apply to the Commission pursuant to Principle 12 of the Commission's Statement of Principles to seek variation to the phase-in period for the new minimum rates of pay provided for in this award; 5.1.6(g)(ii) a Board of Reference shall be established from time to time for the purpose of resolving any dispute or difficulty or likely dispute or difficulty in the application of clause 5.1.1(e)(ii) of this Award. The Board shall be constituted by a Chairperson who shall be a member of the Australian Industrial Relations Commission and at least two other members, one of whom is nominated by the Liquor, Hospitality and Miscellaneous Union and the other nominated by the employer respondent to the award affected by the dispute or difficulty or likely dispute or difficulty. Before proceedings commence, the Chairperson shall seek undertakings from the parties appearing before the Board that any decision, subject to the terms of the Act, shall be final. Any decisions of a Board of Reference made pursuant to this clause shall be reduced to writing and published by the Chairperson. [57] The effect of the LHMU's proposal is illustrated, in the table below, by reference to Levels 1 to 5 in the ACT Award . EFFECT OF LHMU REVISED PHASE IN PROPOSALS - ACT AWARD CURRENT LEVEL CURRENT RATE NEW LEVEL NEW RATE INCREASE PHASE IN RATE AT 5.5.5 RATE AT 5.9.5 RATE AT 5.1.6 1.1 474.60 1.1 480.60 6.00 N/A 480.60 480.60 480.60 1.2 484.90 2.1 502.90 18.00 N/A 502.90 502.90 502.90 1.3 495.10 2.2 523.80 28.70 20.00/8.70 515.10 523.80 523.80 2.1 496.70 2.1 502.90 6.20 N/A 502.90 502.90 502.90 2.2 506.90 2.2 523.80 16.90 N/A 523.80 523.80 523.80 2.3 517.20 2.3 523.80 6.60 N/A 523.80 523.80 523.80 2.1 (C10) 496.70 3.1 561.20 64.50 21.50 x 3 518.20 539.70 561.20 2.2 (C10) 506.90 3.2 584.20 77.30 25.70/25.80 x 2 523.60 555.40 584.20 2.3(C10) 517.20 3.3 605.70 88.50 29.50 x 3 546.70 576.20 605.70 2.1 (Dip) 496.70 3.4 645.05 148.35 49.45 546.10 595.60 645.05 2.2 506.90 3.4 645.05 138.15 46.05 552.95 599.00 645.05 2.3 517.20 3.4 645.05 127.85 42.60 x2/42.65 559.80 602.40 645.05 3.1 552.00 3.1 561.20 9.20 N/A 561.20 561.20 561.20 3.2 561.20 3.2 584.20 23.00 20.00/3.00 581.20 584.20 584.20 3.3 571.40 3.3 605.70 34.30 20.00/14.30 591.40 605.70 605.70 3.1 (Dip) 552.00 3.4 645.05 93.05 31.00 x 2/31.05 583.00 614.00 645.05 3.2(Dip) 561.20 3.4 645.05 83.85 27.95 589.15 617.10 645.05 3.3(Dip) 571.40 3.4 645.05 73.65 24.55 595.95 620.50 645.05 4.1 602.20 4.1 684.40 82.20 27.40 629.60 657.00 684.40 4.2 610.40 4.2 696.20 85.80 28.60 639.00 667.60 696.20 4.3 620.70 4.3 707.90 87.20 29.00/29.10 x 2 649.70 678.70 707.90 5.1 630.90 5.1 720.30 89.40 29.80 660.70 690.50 720.30 5.2 641.10 5.2 732.10 91.00 30.30 x 2/30.40 671.40 701.70 732.10 5.2 651.40 5.3 743.80 92.40 30.80 682.20 713.00 743.80 [58] The Employers submit that the phasing in of the new structure should be on a "whole dollar stepped approach" and over a longer period of time than proposed by the LHMU. A three year phase in is proposed, as follows: "6. Phased Implementation of Wage Increases Proposal for clause 16.5.4 and 5.1.6(d): 1. Payment of Increases 1.1 Employees shall be paid increases in their current rates of pay (inclusive of the arbitrated safety net adjustment payable under the Safety Net Review - Wages May 2004 decision [ PR002004 ]) and shall be paid progressive increases in accordance with this clause until their base rate of pay (exclusive of any safety net adjustments) is equal to at least the rate specified in clause .... of this Award. 1.2 Increases shall be paid in intervals of 6 months with the first increase payable from the beginning of the pay period commencing on or after 1 July 2005 and further increases payable in 6 month intervals from 1 January 2006, 1 July 2006, 1 January 2007, 1 July 2007, 1 January 2008, and 1 July 2008. 1.3 The intention of this clause is that increases be paid in `whole $ amounts' at each 6 monthly interval commencing 1 July 2005 up to the dollar amount not exceeding the applicable wage rate for the employee's appropriate classification level and increment as set out in clause ... of this Award. 1.4 Subject to the employee achieving the applicable wage rate for their classification level and increment rate as specified in this Award, the increases shall be awarded as follows: 1 July 2005 Up to $15.00 per week 1 January 2006 Up to a further $15.00 per week 1 July 2006 Up to a further $20.00 per week 1 January 2007 Up to a further $20.00 per week 1 July 2007 Up to a further $20.00 per week 1 January 2008 Up to a further $30.00 per week 1 July 2008 The balance of any increase required to achieve the appropriate classification rate in clause ... of this Award. Note: It is the intention that employees will only be paid the quantum of any increase necessary to achieve at least the wage rate specified in clause.... When the employee has achieved that minimum classification rate, no further increases as a result of the introduction of the new classification structure are payable. Such proportion of any `whole $ amount' increase applicable from a particular date that would have the effect of fixing an employee's wage rate in excess of the rate specified in clause ... is not payable. 1.5 Where there is any disagreement or a dispute arises as to the appropriate quantum of increases, the procedure specified in clause ... `Procedure to avoid industrial disputation' must be followed." [59] The effect of the Employers' approach is that the lower paid employees, and the majority of all employees, will receive their full increase within 18 to 24 months. Indeed most of the lowest paid will receive their full increase within six months. Employees at the diploma level and above will generally receive their increases phased in over a longer period. [60] The Employers contend that in determining the issues of implementation and the phasing in of the new classification structure the Commission must have regard to the public interest. In this context it is submitted that the following considerations are relevant: (i) the link between quality child care and subsequent development and the importance of providing appropriately accredited child care; (ii) the importance of maintaining access to accredited child care in terms of affordability; and (iii) the viability of the child care industry. [61] The essence of the Employers' argument is that if the wage increases associated with the new structure are introduced over too short a period then child care providers will have little alternative but to increase fees. A number of consequences are said to follow: there is unlikely to be any increase in child care benefit payments in excess of Consumer Price Index (CPI) indexation in the 2005/2006 financial year, hence parents will bear the brunt of any fee increase; if fees are increased by too great an amount, too rapidly, in order to meet the cost of increased wage rates there is a danger that there will not be enough time for parents to absorb the fee increase in the short term; families require time to adjust their household budget. Any economic benefit from a parent returning to the workforce after having children may be extinguished by the costs of child care; parents may be forced to find alternative care outside of the formal accredited sector. This will impact on the quality of care provided and subsequent child care development. This cycle last occurred in the mid 1990s when many centres were forced to reduce their size of operations or to cease operating; enrolments in the accredited child care sector are at risk of falling if parents move to other means of care. Enrolments at child care centres may fall, leading to a requirement for less staff and loss of employment. The viability of child care centres may be impacted upon. [62] In relation to the last point it is also submitted that Certificate III employees would be disadvantaged if the new structure was phased in too quickly. A Certificate III qualification is not required to carry out the work of an assistant to the person in charge of a group of children. Hence Certificate III employees will be competing for the same positions as unqualified employees, who command significantly lower rates of pay. [63] The Employers rely on the following evidence in support of their contentions: the statement of Mr Allen Daniel Fazldeen; 14 the statement of Mr Frank J. Cusamo; and 15 the evidence of Ms Linda Powell. 16 [64] None of these witnesses were cross examined and we accept their evidence and have had regard to it. [65] Mr Fazldeen is the Secretary of the Children's Services Employers Association Queensland Union of Employers. He has extensive experience in the children's services sector. The substance of his evidence is that, historically, when significant fee increases have occurred in the industry enrolments in accredited services have dropped. [66] Mr Fazldeen gave evidence to the effect that the careful phasing in of increases over a reasonable period of time will have the following benefits: (i) Services can graduate increases in their fees and reduce the impact on families. (ii) Families will have time to adjust their household working and income plans to take account of fee increases. (iii) The industry will have time to make appropriate submissions to the Government about changes to its assistance programs to achieve adequate affordability and utilisation goals. (iv) It is in the public interest to ensure that regulated child care continues to be affordable. (v) It is in the public interest to ensure that women, as the primary caregivers, continue to have real choice to remain in the workforce. (vi) It is in the public interest that parents are encouraged to continue to use formal care. (vii) It is in the best interests of children that parents are encouraged to continue to use formal care. [67] Mr Cusamo is the Chief Executive Officer of the Childcare Centres Association of Victoria. His evidence relates to the labour cost impact of the new structure and expected fee increases. The total labour cost increase of implementing the new classification structure (not taking into account incremental increases) is provided using costing models based on current staffing structures at eleven child care centres. This information is set out in summary form below. Centre Weekly wages Increase in costs Daily increase per place Increase in daily parent contribution (i.e. fee minus child care benefit) $ % $ % 1. Kids Company 2194.65 12.1 3.66 15 2. Sunshine 1075.95 15.1 3.59 25 3. Lavender Lane 1795.09 14.9 4.99 30 4. Kids Paradise 1100.21 11.7 3.24 15 5. Peas in a Pod 467.27 16.3 6.23 74 6. Kinderclubs 539.12 9.7 2.51 17 7. Linda 1218.18 12.8 4.06 17 8. Jenny (ACT) 615.05 5.4 1.81 7 9. Kindyland (ACT) 1551.63 11 3.45 18 10. Numurkah 599.24 11.9 2.00 16 11. Jacobs Drive 576.12 11.4 3.97 24 [68] We note that the parties are in general agreement that if the wage increases flowing from the implementation of the new structure were passed on the result would be an increase in fees of between $4 and $6 per child per day. 17 [69] An officer of the Federal Department of Family and Community Services, Ms Linda Powell, also gave evidence in the proceedings. Ms Powell provided information relating to the operation of funding and government support to the children's services sector. In particular evidence was provided regarding eligibility for benefits and the manner in which they are claimed and paid; and the gap between government benefits and actual child care costs. [70] In relation to the child care benefit (CCB) Ms Powell's evidence was that this is a payment delivered by the Family Assistance Office to assist families with the cost of child care. CCB reduces the cost of child care for most parents. The amount of CCB to which a family is entitled depends on family income, the number of children in care, the hours of care and the type of care. Families using Australian Government approved child care services and on the lowest incomes, receive the highest assistance. The CCB rate generally reduces as family income increases, to the point where families receive the minimum rate. Families using registered care can receive the minimum rate of CCB. [71] All families using child care provided by approved child care services or registered carers may receive CCB. The rates for CCB for 2004-05 are as follows: Maximum rate (for families earning up to $32,485 per year): $2.81 per hour per child, or $140.50 per week per child for 50 hours of care. Minimum rate (for families earning above $93,299 per year with one child, $101,148 for two children, $114,909 for three children or $134,108 for four children): $0.47 per hour per child, or $23.55 per week per child for 50 hours of care. CCB is indexed annually, on the first Monday in July, in line with the CPI over the twelve months to the December quarter of the previous year. [72] Ms Powell also provided the following information about long day care fees charged in Victoria and in the ACT: Service Type State/Territory Minimum Maximum Average LDC $ per week ACT $129.50 $259.40 $226.40 Victoria $135.00 $339.50 $206.20 FDC $ per week ACT $179.50 $239.70 $217.10 Victoria $139.40 $232.50 $180.40 OSHC - ASC $ per session ACT $8.00 $17.00 $12.50 Victoria $3.00 $21.00 $9.20 OSHC - BSC $ per session ACT $3.00 $10.00 $6.80 Victoria $2.00 $11.00 $6.40 Note: For LDC and FDC this is the full-time fee for 50 hours of care for a single child in a week. For OSHC - ASC and OSHC - BSC this is the fee charged for attending 3 hours of after school care and 2 hours of before school care. Source: 2004 Child Care Census [73] The difference between the CCB entitlement of a customer and the fee they are charged for their child care use is known as the "gap" fee. Statistical details (average, minimum and maximum) of existing weekly gap fees for Victorian and ACT families for each child care service type follow: Maximum, minimum and average gap fees Service Type State/Territory Minimum Maximum Average LDC $ per week ACT $0 $226.40 $62.35 Victoria $0 $316.50 $51.84 FDC $ per week ACT $42.00 $216.70 $57.51 Victoria $2.40 $209.50 $38.43 OSHC - ASC $ per session ACT $0 $15.62 $6.25 Victoria $0 $19.62 $2.95 OSHC - BSC $ per session ACT $0 $9.08 $2.63 Victoria $0 $10.08 $2.23 Note: Based on 2004 Child Care Census fees data and CCB rates applicable at the time of the 2004 Child Care Census. The minimum gap fee is a theoretical amount based on the maximum CCB being paid in the service charging the minimum fee. The maximum gap fee is a theoretical amount based on the minimum CCB being paid in the service charging the maximum fee. The average gap fee is a theoretical amount based on one child in care with a family income of $50,000 per year. For LDC and FDC, the average gap fee is based on a child using 26 hours per week of care, which is the approximate average number of hours of care used during the Census week. For OSHC - ASC, average CCB is based on a child using 3 hours of care per session. For OSHC - BSC, average CCB is based on a child using 2 hours of care per session. [74] Ms Powell's evidence also dealt with the proposed Child Care Tax Rebate (CCTR). The CCTR will enable eligible parents to claim 30 per cent of their out-of-pocket costs for child care (i.e. fees paid after CCB entitlement has been paid) as a tax rebate. The CCTR is a commitment from the 2004 Federal Election and has not yet been passed in Parliament. To be eligible to receive the CCTR parents need to: be claiming CCB for approved care (rebate will not be paid for registered care), and meet the CCB work/study/training test. [75] The CCTR amount is capped at $4,000 per child, per year (indexed annually by the CPI). [76] Claims for 2004-05 child care expenses will not be assessed by the Australian Taxation Office until 1 July 2006 (i.e. as part of a claimant's 2005-06 tax return). The delay in payment is necessary because many families will not know their exact out-of-pocket expenses until their taxable income and their CCB entitlement for the same claim period have been reconciled. Centrelink conducts a reconciliation of CCB based on usage data provided by services and this data can take some time to be returned. Two further points should be noted: It is anticipated that families will be required to keep official receipts for child care expenses to validate CCTR claims. The CCTR remains non-refundable and transferable, i.e. the amount of rebate payable will be limited by an individual's tax liability. However taxpayers with insufficient tax liability can transfer any residual claim amounts to their spouse's tax return. [77] Ms Powell also clarified the Commonwealth's position with respect to the provision of any additional funding to offset the additional costs flowing from the implementation of our decision. [78] In matter C2002/2620, Australian Municipal, Administrative, Clerical and Services Union re Applications to vary the Victorian Local Authorities Award 2001 in relation to the remuneration of childcare workers, the Commonwealth submitted: "... no assumption can or should be made that Commonwealth funding will be provided to offset the additional wage costs. We respectfully submit that Commonwealth funding is not a relevant or appropriate consideration for assessing the industrial merits or otherwise of the proposal before the Commission" 18 [79] The Full Bench decision in that matter 19 acknowledged and reflected the Commonwealth's submission, as follows: "[24] Finally, the Commonwealth warned us that no assumption could or should be made that Commonwealth funding would be made available to offset the additional wage costs if the agreement was implemented in the award. Mr O'Brien submitted that Commonwealth funding is not a relevant or appropriate consideration for assessing the industrial merits or otherwise of the proposal before the Commission." [80] Ms Powell confirmed that the Commonwealth's position remains unchanged in relation to additional wage costs resulting from the current applications. [81] The Employers also submit that the cases relied on by the LHMU (in the April 2005 proceedings) as supportive of shorter phase in periods do not assist. The cases in question involved less significant wage increases and circumstances where the relevant employers were in agreement with the timing sought. 20 [82] As to the operative date of the first increase arising from the new classification structure, the Employers propose 1 July 2005. It is argued that a prospective operative date will allow employers time to adjust fees charged to parents and to have an orderly implementation of the new classification structure. [83] The date proposed is also said to be significant because it is the date on which, historically, the CCB payment has been increased on the basis of a formula adopted by the Federal Government. The first of July is also the date on which many child care centres have traditionally increased their fees. [84] Mr Amesbury, on behalf of the KPAV, advanced a different position with respect to phasing in to that taken by the Employers. Mr Amesbury submitted that an implementation period of between 18 and 24 months would be sufficient for the community child care sector to adjust to the cost increase flowing from the implementation of the new classification structure. In this context he said that his members had sought to balance the cost impact of implementing the new structure with the need to recruit and retain qualified staff. [85] In reply the LHMU completely rejects the three-year phase in period proposed by the Employers. The majority of the cases cited by the LHMU in its original submissions in support of a three-stage phase in period ending in December 2005 were decided after the decision of Vice President Ross in Industrial Catering, Cleaning and Incidental Services (AWU and LHMU) Award 1998 21 and were influenced by the decision. The LHMU contends that the decision had the effect of introducing a new benchmark for minimum rates adjustment and properly fixed minimum rate implementation timetables and is to be preferred over the ambit claim of the Employers. [86] The LHMU notes that the costing materials supplied as part of the Employers' written submissions related only to small for-profit services. Similar materials are not provided for non-profit community based services; or for private, stock market listed services. Further it is argued that the material filed by the Employers has limited probative value. It does not include any information on profit levels, or on total income and expenditure. It provides no information about the extent to which services may be in a position to absorb wage increases on a short-term basis. It illustrates total wages and does not compare the managed, three-stage phase in proposal previously foreshadowed by the LHMU. [87] The Union submits that the Employers do not argue that they can't pay, they simply do not want to pay yet . In this context the Employers' submission cites no arbitral authority to support an approach by which the Commission should give primary consideration in the establishment of properly fixed minimum rates to the pricing impact of goods or services. The LHMU draft orders acknowledge the right of any employer or any relevant group of employers with a true "incapacity" to pay to make application at any time during the phase in timetable under Principle 12, the Economic Incapacity principle. To the extent that the Employers' arguments do not fall within the Economic Incapacity principle, the LHMU submits that they should be disregarded. [88] The LHMU rejects the Employers' arguments that phasing in of wage increases will have a commensurate impact on child care affordability. There is no price regulation in child care, nor is there any fee regulation. In the absence of any price control, the Commission cannot be confident that the phasing in of wage increases will in fact provide relief for families in terms of lower fee increases. In relation to this issue we note Mr Fazldeen's evidence as to the existence of price competition in the sector. [89] The LHMU contends that nothing has been put in the Employers' submission that undermines the LHMU's evidence that the wage increases are sustainable. It is argued that a more objective analysis was set out in the statement of Ms Petra Hilsen, as noted in the January 2005 Full Bench decision 22 . This evidence is said to show that many services are capable of accommodating the wage increase and that it enables the Full Bench to draw the conclusion that the increases are entirely sustainable in relation to the not-for-profit sector. [90] The reference in the Employers' submissions to the 1990s' "cycle" (in paragraph 12.8) is said to be a reference to the abolition of operational subsidies in 1997. This was a change in Federal funding policy resulting in the withdrawal of a dedicated funding stream to not-for-profit services. It was not in any way driven by increased wage costs. We note that this submission is inconsistent with Mr Fazldeen's uncontested evidence. [91] In terms of whether the quantum of the increases will have the catastrophic effect suggested by the Employers, the LHMU has been advised that the full implementation of the properly fixed minimum rates will result in an increase in service costs of between $4 to $6 per child per day of care. The Taskforce on Care Costs , cited by the Employers, notes that the average attendance per week for long day care was 19.9 hour per week, with an average cost of $117 per week nationally, with a higher than average cost in Melbourne ($138 per week) and Sydney ($181 per week) 23 . Based on these figures the average cost of any fee increase arising from the Full Bench decision is between $8.00 and $12.00 per family per week. Further, these costings are based on the full implementation - that is, the final instalment rates. We note that the costs provided are averages and that the costs for some families (based on their utilisation of child care) may be more or less than the figures cited by the LHMU. [92] It is contended that such increases are clearly sustainable for the corporate child care providers. In this regard reference is made to the half yearly results of the three largest stock market listed providers: · ABC Learning reported an operating profit for the six months ending December 2004 of $15.4 million; · Kids Campus reported a half yearly operating profit for the six months ending December 2004 of $1.4 million; and · Hutchison's Child Care reported a half yearly profit for the six months ending December 2004 of $2 million. [93] We note that it appears that Hutchison's Child Care Services Ltd have since warned that net profit (before amortisation of good will) will fall below analysts' expectations, of about $5.8 million for fiscal 2005, to about $4 million. Last year's result was $3.7 million. 24 However, in the same media report Mr Groves, the chief executive officer of ABC Learning, is quoted as reaffirming that company's forecasts and saying: "Enrolments are up to expectations and we don't anticipate any decline or problems with future occupancy." 25 [94] The LHMU submits that arguments with respect to family affordability are best advanced with the relevant funding agency rather than in these proceedings. [95] We have not been persuaded to adopt either of the phasing in proposals advanced in the proceedings before us. [96] In our view the LHMU's proposal does not provide a sufficient time period for phasing in of what, in some instances, will be substantial wage increases. [97] However, contrary to the Employers' submissions, we have not been persuaded that a three year phase in period is warranted. We recognize that if the wage increases associated with the new structure are introduced over too short a period then it is likely that child care providers will increase fees. Such fee increases may have a number of adverse consequences including a shift from the provision of child care by the formal accredited sector to the informal sector. In this context we accept that there is some force in the LHMU's contention that arguments with respect to family affordability are best advanced with the relevant funding agency rather than in these proceedings. Despite this we are of the view that the matters raised by the Employers are relevant to the determination of the extent of the phase in period. [98] In our decision of 13 January 2005 we accepted the proposition that the provision of appropriately accredited child care is in the public interest. In section 5 of that decision a number of findings were made relating to the link between quality child care and subsequent development. In particular we concluded that the available research supports the proposition that the provision of quality child care is directly related to better intellectual/cognitive and social/behavioural outcomes in children. The available research also suggested that money directed to the early years of children's development results in positive long term outcomes and is cost effective. We adhere to all these observations. [99] We accept that the fact that wage increases are likely to lead to fee increases and hence to less access to accredited child care is relevant to the determination of an appropriate phase in period. In this context we note that the LHMU recognizes the importance of these issues. In a union publication entitled "Child Care Affordability Funding Wage Justice for Child Care Workers" 26 it says: "It's LHMU's strong view that the existing policy framework will do little to accommodate the impact of the federal wages decision. If we are to avert the imminent crisis in childcare affordability, this issue must be addressed as a matter of urgency. We are extremely concerned about where this is heading. Without government assistance and intervention, parents will be forced to pay." [100] However, the impact of wage increases on child care fees and affordability is only one of the considerations to which we have had regard. As Mr Parry SC, counsel for the Employers, acknowledged, what is required is a balancing exercise between the various public interest considerations. In our view two other matters are also relevant. [101] The first relates to the Commission's statutory obligation to establish and maintain "fair minimum wages" 27 . In setting such wage rates the Workplace Relations Act 1996 and general principle requires the Commission to have regard to the skill responsibility and the conditions under which the work is performed 28 . The Commission's approach to the proper fixation of minimum rates is dealt with at section 4 of our 13 January 2005 decision. [102] A consequence of the Employers' contentions is that the minimum award rates applicable to child care workers would be set at a level which is below that applicable to comparable classification levels (in terms of AQF qualification levels) in other awards. Such an outcome is neither fair nor equitable. [103] The second general consideration concerns the consequences of not properly fixing the rates of pay for the employees affected by these applications. We have already made findings about the critical shortage of qualified employees in the child care sector and that this impacts on the ability of child care services to meet minimum legislative and quality standards. The shortage of qualified staff has the potential to jeopardise the future of quality child care in Australia. Further, we have found that limited career path options and low pay have contributed to the current recruitment and retention problems. [104] Failing to properly fix the minimum rates of pay for child care workers will only exacerbate these problems. [105] We have had regard to all these matters and have decided to phase in the increases associated with the new classification structures in four instalments utilising a variant of the "whole dollar stepped approach" advocated by the Employers. The instalments we propose are as follows: 1 July 2005 up to $20 per week 1 January 2006 up to a further $20 per week 1 July 2006 up to a further $20 per week 1 January 2007 the balance of any increase required to achieve the appropriate classification rate [106] The effects of the phase in arrangements we have adopted are illustrated in relation to the ACT Award by the table below. We note that this table is based on Attachment A to Exhibit U4. A final translation table will be issued with the orders giving effect to our decision. CURRENT LEVEL CURRENT RATE NEW LEVEL NEW RATE INCREASE RATE AT 1.7.05 RATE AT 1.1.06 RATE AT 1.7.06 RATE AT 1.1.07 1.1 474.60 1.1 480.60 6.00 480.60 480.60 480.60 480.60 1.2 484.90 2.1 502.90 18.00 502.90 502.90 502.90 502.90 1.3 495.10 2.2 523.80 28.70 515.10 523.80 523.80 523.80 2.1 496.70 2.1 502.90 6.20 502.90 502.90 502.90 502.90 2.2 506.90 2.2 523.80 16.90 523.80 523.80 523.80 523.80 2.3 517.20 2.2 523.80 6.60 523.80 523.80 523.80 523.80 2.1 (C10) 496.70 3.1 561.20 64.50 516.70 536.70 556.70 561.20 2.2 (C10) 506.90 3.2 584.20 77.30 526.90 546.90 566.90 584.20 2.3(C10) 517.20 3.3 605.70 88.50 537.20 557.20 577.20 605.70 2.1 (Dip) 496.70 3.4 645.05 148.35 516.70 536.70 556.70 645.05 2.2 506.90 3.4 645.05 138.15 526.90 546.90 566.90 645.05 2.3 517.20 3.4 645.05 127.85 537.20 557.20 577.20 645.05 3.1 552.00 3.1 561.20 9.20 561.20 561.20 561.20 561.20 3.2 561.20 3.2 584.20 23.00 581.20 584.20 584.20 584.20 3.3 571.40 3.3 605.70 34.30 591.40 605.70 605.70 605.70 3.1 (Dip) 552.00 3.4 645.05 93.05 572.00 592.00 612.00 645.05 3.2(Dip) 561.20 3.4 645.05 83.85 581.20 601.20 621.20 645.05 3.3(Dip) 571.40 3.4 645.05 73.65 591.40 611.40 631.40 645.05 4.1 602.20 4.1 684.40 82.20 622.20 642.20 662.20 684.40 4.2 610.40 4.2 696.20 85.80 630.40 650.40 670.40 696.20 4.3 620.70 4.3 707.90 87.20 640.70 660.70 680.70 707.90 5.1 630.90 5.1 720.30 89.40 650.90 670.90 690.90 720.30 5.2 641.10 5.2 732.10 91.00 661.10 681.10 701.10 732.10 5.2 651.40 5.3 743.80 92.40 671.40 691.40 711.40 743.80 [107] Under the phase in arrangements we have adopted, the majority of the employees covered by the new structure will receive most, if not all, of the increases flowing from the implementation of properly fixed rates by 1 July 2006. Those classified at Levels 3.4 and above will fully translate to the new properly fixed rates at 1 January 2007. [108] We note that during the proceedings we were referred to a number of decisions concerning the phasing in of minimum rates adjustments in other awards. In our view these issues are to be determined on the basis of all of the relevant circumstances in relation to the award in question. Decisions that reflect different circumstances are of little assistance. [109] The arrangements we have adopted give appropriate priority to those employees classified at the lower end of the classification structure and represent an appropriate balance between the competing public interests. [110] Finally we note that pursuant to Principle 12, Economic Incapacity, of the Statement of Principles, any respondent or group of respondents to the Awards before us may make application to, temporarily or otherwise, reduce, postpone and/or phase in the implementation of the increases we have determined. Such application may be made at any stage. [111] It should also be noted that the phasing in arrangements we have determined are intended to ensure that any fee increases resulting from our decision are introduced in a staged way. In the event that a child care service provider elected to increase fees in advance of any increase in labour costs, and without appropriate justification, the LHMU may make application to modify the phase in arrangements we have determined, in respect of the child care service provider concerned. First aid allowance [112] In application C2003/4271 the LHMU sought the insertion of a first aid allowance in the Victorian Award in the following terms: "19.5 First Aid Allowance 19.5.1(a) An employee who has been trained to render first-aid and who is the current holder of appropriate first-aid qualifications such as a certificate from St. John Ambulance or a similar body shall be paid an amount of $10.28 per week. 19.5.1(b) If the employer requires an employee to undertake first aid training, then such training shall be in paid time and the cost of course (including course materials) shall be paid by the employer." 29 [113] If the Commission was not inclined to grant the Union's primary application then, in the alternative, it sought a clause in the same terms as appears in the ACT Award . [114] Clause 5.5.2 of the ACT Award states: "5.5.2(a) The employer shall appoint an employee to act as a first aid person and where practicable such employee shall be qualified in first aid. An employee so appointed who has undertaken a first aid course and who is the holder of a current recognised first aid qualification such as a certificate from the St. John's Ambulance or similar body shall be paid an allowance of $6.32 per day. Provided that employees engaged in out-of-school hours care and appointed as First Aid person shall be paid 83 cents per hour additional to his/her ordinary rate of pay. 5.5.2(b) Provided that a first aid person need not be appointed where a qualified nurse is on the premises at all times." [115] This claim was not determined by the Commission's decision of 13 April 2005. As part of this final phase of the proceedings the parties were directed to file further submissions addressing the following issues: 1. Evidence as to the first aid competencies that form part of the Certificate III and Diploma qualifications. 2. Whether the relevant first aid competencies meet the requirements of the regulatory provisions in the ACT and Victoria. 3. Whether a first aid allowance should be paid to appropriately qualified employees classified at Levels 1 and 2. 4. Whether the existing allowance in the ACT Award should be retained, and if so whether it should be amended to clarify its meaning. 5. If the existing allowance in the ACT Award is to be removed, then what savings mechanism should be put in place to ensure that no employee suffers a reduction in income. 6. Any other matter that a party considers relevant to the resolution of this issue. [116] Subsequent conciliation resolved a number of the issues between the parties. [117] In respect of the Victorian Award the LHMU proposes a new subclause 19.5 in the following terms: 19.5 First Aid Allowance 19.5.1 Where an employer appoints an employee to act as a first aid person pursuant to the Victorian WorkCover Authority's Code of Practice (No. 18) First Aid in the Workplace, and such employee has undertaken a first aid course and is the holder of a current recognised first aid qualification such as a certificate from the St John's Ambulance, the Australian Red Cross or similar body, the employer shall pay the employee an allowance of $2.30 per day. 19.5.2 Where an employer requires an employee below Level 3 to administer first aid to children within the employee's care and the employee is the current holder of a recognised first aid qualification such as a certificate from the St John's Ambulance, the Australian Red Cross or similar body, the employer shall pay the employee an allowance of $6.32 per day. However, an employee below Level 3 engaged in out-of-school hours care and appointed as First Aid person shall be paid 83 cents per hour additional to his/her ordinary rate of pay 19.5.3 The employer shall reimburse employees for the demonstrated costs of keeping their first aid qualifications up to date. Employees should not incur such costs without the prior approval of their employer. The employer must not unreasonably withhold approval. [118] In respect of the ACT Award the LHMU proposes the deletion of the current clause 5.5.2(a) and its replacement with a clause in the following terms: 5.5.2(a)(i) Where an employer appoints an employee to act as a first aid person pursuant to the ACT First Aid in the Workplace Code of Practice, and such employee has undertaken a first aid course and is the holder of a current recognised first aid qualification such as a certificate from the St John's Ambulance, the Australian Red Cross or similar body, the employer shall pay the employee an allowance of $2.30 per day. 5.5.2(a)(ii) Where an employer requires an employee below Level 3 to administer first aid to children within the employee's care and the employee is the current holder of a recognised first aid qualification such as a certificate from the St John's Ambulance, the Australian Red Cross or similar body, the employer shall pay the employee an allowance of $6.32 per day. However, for an employee below Level 3 engaged in out-of-school hours care, the allowance shall be 83 cents per hour additional to his/her ordinary rate of pay. 5.5.2(a)(iii) The employer shall reimburse employees for the demonstrated costs of keeping their first aid qualifications up to date. Employees should not incur such costs without prior consultation with their employer. [119] The parties have agreed on two aspects of the first aid provisions in each of the Awards but disagree on the third element of the proposal. [120] The first provision (proposed clauses 19.5.1 and 5.5.2(a)(i)) has its origin in Occupational Health and Safety legislation and applies to employees appointed as the First Aider to provide first aid treatment to other employees. The agreed allowance of $2.30 a day was supported by a survey of some 45 federal Awards operating in Victoria to which the LHMU is a party. [121] The second provision (proposed clauses 19.5.2 and 5.5.2(a)(ii)) relates specifically to the child care/children's service industry and any requirement to administer first aid to children. This provision recognises (by implication) that first aid qualifications are part of the core competencies for both the Certificate III course in children's services, and the Diploma of Children's Services. The agreed clause is based on a clarification of the current provisions of the ACT Award . [122] During the Full Bench hearing on 31 March 2005 the LHMU tendered copies of the Victoria University Child Studies brochure, which set out the modules required for successful completion of Certificate III in Children's Services and the Diploma of Children's Services, respectively 30 . Relevantly, Certificate III contains a module entitled "Apply Advanced First Aid" : Assess the situation; Manage the casualty(s); Coordinate First Aid activities until arrival of medical assistance; Communicate essential incident details; Manage casualty in a remote and/or isolated area; Evaluate the Incident. [123] The Certificate III module is a compulsory core unit for the Diploma. The Diploma core units also include: CHCCHILD2C: Establish, Manage and Monitor the Implementation of a Safe and Healthy Environment: Assess and improve the safety of environments; Co-ordinate the response to accidents and emergencies; Plan and monitor supervision; Promote hygiene and safe practices; Promote appropriate practices to respond to illnesses; Monitor travel and excursions; Provide guidance to workers when abuse is identified or investigated; Monitor care provided by others. CHCCN1D: Ensure Children's Health and Safety. Maintain a clean and hygienic environment; provide a safe environment; Supervise the safety of children; Travel with children safely; Administer medication within guidelines. CHCCN4D: Respond to Illness, Accidents and Emergencies. Implement procedures for infection control and prevention; Recognise and respond to signs of potential illness; Respond to emergencies and accidents; Respond to threats and situations of danger. [124] These core units do not expressly state that they lead to the equivalent of a St John or Red Cross First Aid qualification, but are more general in nature. Despite this the LHMU acknowledges that they contain compulsory elements of knowledge of first aid requirements, including the administering of first aid to children. It is also agreed that some training providers contract with St John Ambulance to deliver the "first aid" competencies contained in the training packages, and that completion of the module through these providers carries with it St John certification. On this basis it is accepted that Certificate III and Diploma holders are "qualified" by study to administer first aid to children. However, it is also agreed that CSE 1 and CSE 2 employees (not holders of Certificate III or Diploma and not paid at the relevant rates) are not so qualified, and provision is made for the agreed allowance to be paid to them. [125] The third proposal - which is not agreed by the Employers - is for the provision of a reimbursement-type allowance. In the LHMU's Victorian Award draft order 31 , the amended proposal is expressed as follows: "19.5.3 The employer shall reimburse employees for the demonstrated costs of keeping their first aid qualifications up to date. Employees should not incur such costs without the prior approval of their employer. An employer must not unreasonably withhold approval." [126] The LHMU submits that the "updating" requirements for first aid certification vary between accreditation bodies. In some cases, it is a short course held once a year, in other cases it is a longer course every three years. [127] The LHMU's proposed clause is said to build in protection for employers by requiring prior approval before any entitlement to reimbursement arises. This recognises that not all employees will be required by the employer to update the first aid modules of their Certificate III or Diploma training. In Victoria, the Children's Services Regulations 1998 (S.R. No. 59/1998) oblige employers only to have "at least one" first aid trained staff member on duty at any time. Regulation 26 provides: "26. Staff to have first aid training The proprietor must ensure that at least one staff member on duty whenever children are being cared for or educated by the children's service has first aid training in emergency life support and cardio-pulmonary resuscitation, convulsions, poisoning, respiratory difficulties, management of severe bleeding, injury and basic wound care appropriate for those children." [128] Regulations 3.22 and 3.23 of the ACT School Age Care Conditions - August 2000 provide: " 3.22 There must be at least one staff member with a current First Aid Level 2 certificate on the premises at all times when children are present. 3.23 There must be at least one staff member with a current First Aid Level 2 certificate on all excursions." 32 [129] The LHMU contends that its proposal is facilitative (see s. 143 (1C)(a) of the Workplace Relations Act 1996 ). It allows an employer to designate one or more employees at Level 3 or above to be the "first aider" required by the Regulations. It does not extend the allowance to employees generally. The proposed reimbursement-type allowance provision recognises that the maintenance of first aid qualifications for children's services employees is a work-related issue affecting the quality of child care. It is to be recalled that Level 3 and Level 4 employees are not paid a work-related allowance for exercising the skills and responsibility of administering first aid to children in their care. By designating a Level 3 or above employee as the "first aider" in order to meet the Regulation requirements, the employer is able to avoid the significant allowance prescribed if the designated employee were Level 2 or below. In such circumstances, it is argued that an obligation to reimburse the cost of the designated employee maintaining his or her first aid certification is modest and reasonable. [130] The Employers are opposed to proposed clauses 19.5.3 in the Victorian Award and 5.5.2(a)(iii) in the ACT Award , which state: "reimbursement to employees for the demonstrated costs of keeping their first aid qualifications up to date and that employees should not incur such costs without prior consultation with their employer." [131] Three points are advanced by the Employers in opposing this part of the LHMU's proposal: (i) The balance of the proposed clause is sufficient and consistent with Commission standards regarding the provision of a first aid allowance to those persons who are appointed by the employer to perform first aid duties. Reference is made to clause 5.9.2(b) of the Metal, Engineering and Associated Industries Award 1998 33 in this context. (ii) An inherent part of the performance of first aid duties, and the requirement for payment, is the holding of an appropriate first aid qualification. (iii) The agreed allowance adequately compensates the employee for any necessary costs incurred in seeking to renew the qualification upon its expiry. The CPR certificate must be renewed every twelve months and the full first aid certificate is valid for approximately three years. [132] The Employers' submissions are also supported by the KPAV. [133] We are prepared to vary the Awards consistent with the provisions that have been agreed between the parties. [134] We are not persuaded that we should provide for the reimbursement of the costs associated with employees keeping their first aid qualifications current. In this regard we note: the Union's proposal was not supported by any evidence as to the extent of the costs incurred in keeping such qualifications up to date; and the Union was unable to refer us to any arbitrated decision or award provision that provided any support for the provision claimed. [135] We note the Union's submissions as to the limited circumstances in which the proposed provision would operate and the "safeguards" provided in the draft clause. But these factors alone are not sufficient to justify the variation sought. It must also have sufficient industrial merit. On the material before us we are not persuaded that the variation sought has the requisite merit. Conclusion [136] The orders giving effect to our decision will be settled by Commissioner Deegan with recourse to the Full Bench if necessary. Part of those orders will include a translation table from the current classification structures to the new structures, and provision for a Board of Reference to resolve any disputes that may arise. [137] In conclusion we note that three outstanding issues are yet to be determined. 1. Exemption level for Directors [138] The Employers' proposed exemption level for Directors is to be dealt with after the orders in respect of the new classification structure have been issued. The matter has been remitted to Commissioner Deegan for determination. 2. Proposed level 3.4 [139] Earlier in these proceedings the LHMU sought a new classification level, Level 3.4, with a 115 per cent relativity to the Certificate III on commencement classification. It was proposed that Level 3.4 would apply to employees holding a relevant AQF Certificate IV qualification. In its decision of 13 April 2005 the Commission decided that "[t]here is insufficient material before us at present to support such an increment" 34 . [140] Once the new classification structure has been fully implemented the Union may make application to insert a classification of the type sought. 3. Descriptor for Level 5 in the ACT Award [141] This matter is to be remitted to Commissioner Deegan for determination. If the claim is pressed it will need to be supported by an appropriate evidentiary basis and justified on work value grounds. BY THE COMMISSION: VICE PRESIDENT Appearances : N. Swancott with J. Schofield , V. Ilias and L. Stubbs for the Liquor, Hospitality and Miscellaneous Union (formerly the Australian Liquor, Hospitality and Miscellaneous Workers Union). F. Parry (Senior Counsel) with R. Clancy , L. Moloney and C. Gamack for the Australian Childcare Centres Association Industrial Organisation of Employers, Childcare Centres Association of Victoria Inc. and Communities @ Work. D. Morphett (of counsel) for the Australian Federation of Childcare Associations, the Confederation of ACT Industry, the ACT Children's Services Association and Southside Community Services. D. Amesbury for the Kindergarten Parents Association of Victoria. R. Waite for the Victorian Children's Services Association. Hearing details : 2005. Sydney/Melbourne video hearing: May 4. ATTACHMENT 1 - LHMU'S DRAFT ORDER - ACT AWARD AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s. 113 applications for variation s. 107 reference to Full bench Liquor, Hospitality and Miscellaneous Union CHILD CARE INDUSTRY (AUSTRALIAN CAPITAL TERRITORY) AWARD, 1998 (ODN C No. 03697 of 1985) [Print M0876 [C0173]] (C 2002/5237) Health and welfare services VICE PRESIDENT ROSS SYDNEY, 4 MAY, 2005 SENIOR DEPUTY PRESIDENT MARSH COMMISSIONER DEEGAN Wage rates - classification structure - award title LHMU DRAFT ORDER 2 MAY 2005 A. Further to the decision of a Full Bench of the Commission issued on 13 January 2005 [ PR954938 ] and 13 April 2005 [ PR957259 ] the above award is varied as follows: 1. By deleting clause 1.1 and by inserting instead the following: 1.1 AWARD TITLE This award shall be referred to as the Children's Services (Australian Capital Territory) Award 2005. 2. By deleting from clause 1.5.1 the words "Australian, Liquor Hospitality and Miscellaneous Workers Union" and by inserting instead the words "Liquor, Hospitality and Miscellaneous Union". 3. By deleting clause 5.1 and by inserting instead the following: 5.1 CLASSIFICATIONS AND WAGE RATES 5.1.1 Classifying employees 5.1.1(a) All employees shall be classified by the employer into one of the levels contained in this clause in accordance with the employee's skills, responsibilities, qualifications and duties. Where an employee believes they have been wrongly classified the matter shall be dealt with in accordance with the dispute settling procedure set out in clause 3.1 (or clause 5.1.6(g) as appropriate). 5.1.1(b) In this clause "the Act" means the Australian Capital Territory Children's and Young People Act 1986 (as amended|) and related regulations and licensing conditions. CLASSIFICATION STRUCTURE 5.1.1(c) Children's Services Employee Level 1 This is an employee who has no formal qualifications but is able to perform work within the scope of this level. This employee will work under direct supervision in a team environment, and will receive guidance and direction at all times. This employee will receive structures and regular on-the-job training to perform the duties expected at this level. Normally, an employee at this level shall not be left alone with a group of children. An employee at this level is being introduced to the working environment and is undertaking the following indicative duties: · Learning and implementing the policies, procedures and routines of the service. · Learning how to establish relationships and interacting with the children. · Learning the basic skills required to work in this environment with children. · Giving each child individual attention and comfort as required. · Basic duties including food preparation, cleaning, or gardening. The employee will progress to Level 2 after a period of one year or earlier if the employer considers the employee capable of performing the work at the next level or if the employee actually performs work at the next level. 5.1.1(d) Children's Services Employee Level 2 This is an employee who has completed 12 months in Level 1, or an AQF Certificate II, or in the opinion of the employer has sufficient knowledge and experience to perform the work within the scope of this level. An employee at this level has limited knowledge and experience in children's services and is expected to take limited responsibility for their own work. A Level 2 employee undertakes the following indicative duties: · Assist in the implementation of the children's program under supervision · Assist in the implementation of daily care routines · Develop awareness of and assist in maintenance of the health and safety of the children in care · Give each child individual attention and comfort as required · Understand and work according to the centre or service's policies and procedures · Responsible for food preparation, cleaning, gardening or general maintenance under the guidance of the Assistant Director/Director. · Demonstrate knowledge of hygienic handling of food and equipment. 5.1.1(e) Children's Services Employee Level 3 5.1.1(e)(i) This is an employee who has completed AQF Certificate III in Children's Services or an equivalent qualification or alternatively this employee shall possess, in the opinion of the employer, sufficient knowledge or experience to perform the duties at this level. An employee appointed at this level will undertake the same duties and perform the same tasks as a CSE Level 2 employee, and will undertake the following additional indicative duties: · Assist in the preparation, implementation and evaluation of developmentally appropriate programs for individual children or groups; · Responsible for recording observations of individual children or groups for program planning purposes for qualified staff · Under direction, work with individual children with particular needs. · Assist in the direction of untrained staff · Undertake and implement the requirements of quality assurance. · Work in accordance with food safety regulations 5.1.1(e)(ii) Subject to this Award, an employee at this Level is entitled to incremental progression to pay level 3.3. However: · an employee at this level who has completed an AQF Diploma in Children's Services or equivalent, and who applies skills and knowledge acquired beyond the competencies required for AQF Certificate III in the on-going performance of their work, must be paid no less than the rate prescribed for pay Level 3.4. Any dispute concerning an employee's entitlement to be paid at pay Level 3.4 may be referred to a Board of Reference appointed under clause 5.1.6(g) (ii). A Board of Reference may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge above those prescribed for Level 3 but below those prescribed for Level 4. 5.1.1(f) Children's Services Employee Level 4 This is an employee who has completed a Diploma in Children's Services or equivalent and who, in accordance with licensing requirements, is appointed as the person in charge of a group of children in the age range from birth to 12 years (Team Leader). An employee appointed at this level will take on the same duties and perform the same tasks as a CSE Level 3 and undertake the following additional indicative duties: · Responsible, in consultation with the Assistant Director/Director for the preparation, implementation and evaluation of a developmentally appropriate program for individual children or groups of children in care. · Responsible for the direction and general supervision of other employees up to CSE Level 3. · Responsible to the Assistant Director/Director for the supervision of students on placement. · Ensure a safe environment is maintained for both staff and children. · Ensure that records are maintained accurately for each child in their care. · Develop, implement and evaluate daily care routines. · Ensure the centre or service's policies and procedures are adhered to. · Liaise with families. 5.1.1(g) Children's Services Employee Level 5 This is an employee who has completed an [AQF 5] Diploma in Children's Services or equivalent, who is a Team Leader who supervises Level 4 employees , and/or is appointed as an Assistant Director of a service; or is appointed as: · Family Day Care Coordinator, · School Age Care Coordinator, · Family Day Care Trainee Supervisor, or · Playgroup Leader. An Assistant Director appointed at this level will take on the same duties and perform the same tasks as a CSE Level 4 and be responsible for the following additional indicative duties: · co-ordinate and direct the activities of employees engaged in the implementation and evaluation of developmentally appropriate programs · contribute, through the Director, to the development of the centre or service's policies · coordinate centre operations including Occupational Health and Safety, program planning, staff training · take responsibility for the day-to-day management of the centre or service in the temporary absence of the Director and for management and compliance with licensing and all statutory and quality assurance issues · generally supervise all employees within the service. A Family Day Care Trainee Supervisor is an employee who has completed a Diploma in Children's Services or equivalent, Workplace Assessor/training qualifications and/or an experienced employee who is undertaking the following indicative duties to the level of their skills, competence and training: · Provides support and guidance to family based child care workers undertaking the AQF Certificate III Traineeship. · Undertakes supervision visits for the purpose of on-the-job workplace assessment. · Organises training assistance such as additional resources, in-service sessions and study groups as required. · Contributes to the development of the scheme policies. A Family Day Care Co-ordinator is an employee who has completed a Diploma in Children's Services or equivalent and/or an experienced employee who is undertaking the following indicative duties to the level of their skills, competence and training : · Arranges, administers and monitors a number of Family Day Care placements. · Responsible for the direction, training and supervision of a number of Family Based Child Care Workers · Implements licensing regulations and accreditation requirements for family day care · Assists in recruiting and approving the registration of Family Based Child Care Workers in accordance with the scheme's policies and license regulations. · Documents, interprets and uses information about children. · Assists Family Based Child Care Workers to develop care routines for children in their charge. · Communicates effectively with Family Based Child Care Workers, children, parents and families. · Applies well-developed theoretical knowledge to the care situations with respect to cultural diversity, gender issues and scheme philosophy. · Responsible for the quality of their own work and the work of others. · Ensures that records are maintained and up-to-date. A School Age Care Coordinator is an employee who has completed a Diploma in Children's Services or Out of Hours School Care or equivalent and/or is appointed as the School Age Care Co-ordinator to manage an Out of School Hours Care service with no more than 39 children. The duties of the School Age Care Coordinator are limited to the following: · develops, plans, implements and evaluates a program of activities under the supervision of the Director and in consultation with other employees and children as appropriate; · responsible for the direction and supervision of other employees. 5.1.1(h) Children's Services Employee Level 6 5.1.1(h)(i) Level 6: Director A Director is an employee who holds: · a relevant Degree, or · an AQF Advanced Diploma, or · a Diploma in Children's Services, or · a Diploma in Out of Hours Care, or · is a person possessing such experience, or holding such qualifications deemed by the employer to be appropriate to the position. and/or, · is appointed as the Director of a Service and is responsible for the overall management and administration of the service with the following additional indicative duties: · supervise the implementation of developmentally appropriate programs for children · recruit staff/home-based child carers in accordance with relevant regulations · maintain day-to-day accounts and handle all administrative matters · ensure that the centre or service adheres to all relevant regulations and statutory requirements · ensure that the centre or service meets or exceeds quality assurance requirements · liaise with families and outside agencies · formulate and evaluate annual budgets · liaise with management committees or proprietors as appropriate · provide professional leadership and development to staff · develop and maintain policies and practices for the centre or service. 5.1.1(h)(ii) Director Level 1 A Director Level 1 is an employee appointed as the Director of: · A service licensed for up to 39 child care places, or · A Family Day Care Service of no more than 30 Family Based Child carers and paid at the Level 6.1 to 6.3 salary range. 5.1.1(h)(iii) Director Level 2 A Director Level 2 is an employee appointed as the Director of: · A child care centre or service or Out of School Hours Service with between 40 and 59 places, or · A family day care service with between 31 and 60 family based child carers, and paid at the Director Level 6.4 to 6.6 salary range. 5.1.1(h)(iv) Director Level 3 A Director Level 3 is an employee appointed as the Director of: · A child care centre or service or Out of School Hours Service with 60 or more places, or · A number of child care services provided by a single sponsor, · A family day care scheme or service with more than 61 family based child carers, And paid at the Director Level 6.7 to 6.9 salary range. 5.1.2 Wages rates Employees shall be paid in accordance with the minimum weekly or hourly rates of pay as set out in Schedule A of this Award for their classification level and any additional allowances as set out in that Schedule or in clause 5.5. 5.1.3 Flexibility of work An employer may direct an employee to carry out such duties as are within the limits of the employee's skills, competence and training consistent with the classification structure of this Award, provided that such duties are not designed to promote de-skilling. However, any direction issued by an employer must be consistent with the employer's responsibilities to provide a safe and healthy working environment. 5.1.4 Excess rates Where by mutual agreement between an employer and an employee, rates are paid in excess of those provided by this award, the amount of such excess rates shall not be applied as an offset against any payment due in respect of overtime and/or time worked on any Sunday and/or any holiday. 5.1.5 Incremental progression 5.1.5(a) Progression from one level to the next within a classification is subject to a children's services employee meeting the following criteria: competency at the existing level; 12 months experience at that level (or in the case of employees employed for 19 hours or less per week, 24 months' experience) and in-service training as required; demonstrated ability to acquire the skills which are necessary for advancement to the next pay point level. 5.1.5(a)(i) Where an employee is deemed not to have met the requisite competency at their existing level at the time of appraisal, his/her incremental progression may be deferred for periods of three months at a time provided that: the employee is notified in writing as to the reasons for the deferral; the employee has, in the twelve months leading to the appraisal, been provided with in-service training required to attain a higher pay point; following any deferral, the employee is provided with the necessary training in order to advance to the next level. 5.1.5(b)(ii) Where an appraisal has been deferred for operational reasons beyond the control of either party, and the appraisal subsequently deems the employee to have met the requirements under this clause, any increase in wage rates will be back paid to the 12 month (or 24 month) anniversary date of the previous incremental progression. 5.1.5(c) An employee whose incremental advancement has been refused or deferred may seek to have the decision reviewed by lodging a written request through the dispute resolution procedure in clause 3.1 of this award. If the review is successful, then the incremental advancement will be backdated to the original due date. The review process must be completed within two months of the request for the review being made. 5.1.6 Translation arrangements and savings provision 5.1.6(a) Savings No employee shall suffer a reduction in wages or allowances as a result of the insertion of the new classification structure into this award on {insert date of order} arising from the decisions of the Full Bench of the Commission dated 13 January 2005 [ PR954938 ] and 13 April 2005 [ PR957259 ]. 5.1.6(b) Commencement date Subject to Principle 12 of the Commission's Statement of Principles [ PR002004 , page 103] and the provisions of this clause, the rates of pay set out in this award will apply on and from {insert date}. 5.1.6(c) Translation arrangements 5.1.6(c)(i) An employee whose duties fall within the classification structure set out in this award should confer with his or her employer and seek to reach agreement on the translation of the employee to the terms of this award. 5.1.6(c)(ii) Employees translate to the new classification structure on the basis of the following principles: · where an existing employee is appointed to a higher classification than they currently enjoy, they will translate to the "on commencement rate" for that classification (for example, an existing CCW4 employee who is classified at the new CSE Level 5 will be paid at the CSE Level 5 "on commencement" rate and will progress through the scale according to subsequent experience - see clause 5.1.5). · where an existing employee retains their existing classification, they will retain their current incremental position in that classification based on their years of experience in the industry (that is, if an existing Level CCW4 employee is paid at the "after 2 years" rate, they will be paid the new "after 2 years" properly fixed minimum rate for the new CSE Level 4 "after 2 years" rate). · New employees, or current employees who are subsequently reclassified to a higher grade, will be paid at the "on commencement" rate for the classification to which they are appointed and will progress through the scale according to subsequent experience - see clause 5.1.5 · Existing CCW 1 employees must be classified according to their years of experience: thus, an existing CCW1 employee with more than two years experience will be classified at the new CSE Level 2.2. An existing CCW2 employee with more than one year but not yet two years experience will be classified at CSE Level 2.1. An existing CCW1 employee in their first year of service will (subject to their duties) be classified at new CSE Level 1 for the remainder of their first 12 months service. · Existing CCW2 employees will be classified as either CSE Level 2 or CSE Level 3 employees depending on their qualifications (Certificate III) and/or duties. Thus, a Certificate III employee classified at CSE Level 3 is entitled to immediate recognition of their experience: a Certificate III employee with more than two years of experience previously classified at CCW2 will be classified at CSE Level 3.3. · Unqualified CCW2 employees who are required to perform the duties prescribed for CSE Level 3 must be classified as CSE Level 3. They will start at the "on commencement" rate and progress through the salary scale according to subsequent experience (see clause 5.1.5). 5.1.6(d) Where the employee's current rate of pay is below the rate of pay specified in this Award for the classification appropriate to the employee, the following provisions will apply: 5.1.6(d)(i) From { insert date A} the employee must be paid (in addition to the employee's current rate of pay) one third of the difference between the employee's current rate of pay and the appropriate classification rate for the employee ("the first instalment", which incorporates the May 2004 Safety Net Review - Wages decision adjustment). However, where the employee's existing rate of pay is $20 or less per week below the appropriate classification rate for the employee, the employee must be paid the full appropriate classification rate from { insert date A }. In this circumstance, sub-paragraphs 5.1.6(d)(ii) and (iii) will not apply to the employee. 5.1.6(d)(ii) From {insert date B} the employee must be paid (in additional to the employee's current rate of pay), two-thirds of the difference between the employee's current rate of pay and the appropriate classification rate for the employee ("the second instalment"), or the difference between the employee's rate of pay after the first instalment referred to in 5.1.6(d)(i) and the full appropriate classification rate if that difference is less than $20 per week. 5.1.6(d)(iii) From {insert date C}, the employee must be paid the appropriate classification rate for the employee ("the final instalment"). 5.1.6(e) The employer and employee can agree to earlier implementation dates for wage increases than those dates set out in 5.1.6(d). 5.1.6(f) In the event that the employer and the employee cannot reach agreement as envisaged by 5.1.6(c) or (e), or in the event that a dispute arises as the transitional arrangements referred to in this clause, the procedures specified in clause 3.1 - Procedure to avoid industrial disputation must be followed. 5.1.6(g) Despite 5.1.6(f) and clause 3.1: 5.1.6(g)(i) an employer may apply to the Commission pursuant to Principle 12 of the Commission's Statement of Principles to seek variation to the phase-in period for the new minimum rates of pay provided for in this award; 5.1.6(g)(ii) a Board of Reference shall be established from time to time for the purpose of resolving any dispute or difficulty or likely dispute or difficulty in the application of clause 5.1.1(e)(ii) of this Award. The Board shall be constituted by a Chairperson who shall be a member of the Australian Industrial Relations Commission and at least two other members, one of whom is nominated by the Liquor, Hospitality and Miscellaneous Union and the other nominated by the employer respondent to the award affected by the dispute or difficulty or likely dispute or difficulty. Before proceedings commence, the Chairperson shall seek undertakings from the parties appearing before the Board that any decision, subject to the terms of the Act, shall be final. Any decisions of a Board of Reference made pursuant to this clause shall be reduced to writing and published by the Chairperson. 3. By deleting paragraph 5.5.2(a) and by inserting instead the following: 5.5.2(a)(i) Where an employer appoints an employee to act as a first aid person pursuant to the ACT First Aid in the Workplace Code of Practice, and such employee has undertaken a first aid course and is the holder of a current recognised first aid qualification such as a certificate from the St John's Ambulance, the Australian Red Cross or similar body, the employer shall pay the employee an allowance of $2.30 per day. 5.5.2(a)(ii) Where an employer requires an employee below Level 3 to administer first aid to children within the employee's care and the employee is the current holder of a recognised first aid qualification such as a certificate from the St John's Ambulance, the Australian Red Cross or similar body, the employer shall pay the employee an allowance of $6.32 per day. However, for an employee below Level 3 engaged in out-of-school hours care, the allowance shall be 83 cents per hour additional to his/her ordinary rate of pay. 5.5.2(a)(iii) The employer shall reimburse employees for the demonstrated costs of keeping their first aid qualifications up to date. Employees should not incur such costs without prior approval of their employer consultation with their employer. 4. By deleting Schedule A and by inserting instead the following: SCHEDULE A - WAGE RATES (a) Adult employees Subject to clauses 5.1.5 and 5.1.6 of this Award, an adult employee shall be paid according to the classification in which that employee is employed under this award, not less than the following weekly wage: Classification Pay level Relativity to C10 Weekly rate $ Children's Services Employee Level 1 on commencement 1.1 83.1% 480.60 Children's Services Employee Level 2 on commencement after 1 year 2.1 2.2 87.9% 92.4% 502.90 523.80 Children's Services Employee Level 3 on commencement after 1 year in the industry after 2 years in the industry An employee who has completed a Diploma and who applies the skills and knowledge acquired in the on-going performance of their work 3.1 3.2 3.3 3.4 100% 105% 110% Note 1 561.20 584.40 605.70 645.05 Note 1: Pay Level 3.4 is fixed at the mid-point between the Level 3.3 rate and the Level 4.1 rate. Children's Services Employee Level 4 on commencement after 1 year in the industry after 2 years in the industry 4.1 4.2 4.3 Relativity to C5 100% 102% 104% 684.40 696.20 707.90 Children's Services Employee Level 5 on commencement after 1 year in the industry after 2 years in the industry Note: An Assistant Director who holds an Advanced Diploma (AQF 6) must be paid no less than 5.1 5.2 5.3 5.4 106.1% 108.1% 110.1% Note 2 720.30 732.10 743.80 746.90 Note 2: Pay Level 5.4 has a 145% relativity to the Pay Level 3.1 [C10] rate and is equivalent to Metals C3 rate. Children's Services Employee Level 6 Director Level 1 on commencement after 1 year in the industry after 2 years in the industry Director Level 2 on commencement after 1 year in the industry after 2 years in the industry Director Level 3 on commencement after 1 year in the industry after 2 years in the industry 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 128.6% 130.6% 132.6% 138.7% 140.3% 142.3% 144.4% 146.4% 148.4% 850.70 862.45 874.20 910.10 919.50 931.30 943.60 955.40 967.20 Note 3: A Director or Assistant Director who holds a Graduate Certificate in Child Care Management or equivalent will be paid an all-purposes allowance, calculated at 5 % of the weekly rate for Assistant Director (Pay Level 5.3), eg 37.20 (b) Arbitrated safety net adjustment The rates of pay in this award include the arbitrated safety net adjustment payable under the Safety net review - wages May 2004 decision [Print PR002004 ]. This arbitrated safety net adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above award payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Australian workplace agreements, award variations to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments. (c) Minimum rates adjustment Consequent upon decisions of a Full Bench of the Commission on 13 January 2005 [ PR954938 ] and 13 April 2005 [ PR957259 ] the rates of pay in this award have been adjusted by application of the principles established in the August 1989 National Wage Case [Print H9100] and in the Supplementary Paid Rates Review Decision of 14 October 1999 [Print S0105 ]. The rates of pay set out in subclause (a) of this Schedule are the minimum rates payable to employees from the first pay period to commence on or after {insert date} ( see clause 5.1.6 of this Award). (d) Junior employees Junior employees employed as Children's Services Employee Level 1 shall be paid not less than in accordance with the following percentages for each age level: Under 17 years of age 50% Under 18 years of age 60% Under 19 years of age 70% Under 20 years of age 80% Under 21 years of age 90% B. The above variation takes effect on and from {insert date} ATTACHMENT 2 - LHMU'S DRAFT ORDER - VICTORIAN AWARD AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s. 113 applications for variation s. 107 reference to Full bench Liquor, Hospitality and Miscellaneous Union CHILDREN'S SERVICES (VICTORIA) AWARD 1998 (ODN C No. 20079 of 1993) [AW772675 R0954] (C2003/4271) Health and welfare services VICE PRESIDENT ROSS SYDNEY, 4 MAY 2005 SENIOR DEPUTY PRESIDENT MARSH COMMISSIONER DEEGAN Wage rates - classification structure - award title LHMU DRAFT ORDER 2 MAY 2005 A. Further to the decision issued on 13 January 2005 [ PR954938 ] the above award is varied as follows: 1. By deleting clause 1 and by inserting instead the following: 1 AWARD TITLE This award shall be known as the Children's Services (Victoria) Award 2005. 2. By deleting from clauses 5 and 8.1 the words "Australian Liquor, Hospitality and Miscellaneous Workers Union" and by inserting instead the words "Liquor, Hospitality and Miscellaneous Union". 3. By deleting clause 15 and by inserting instead the following: 15. CLASSIFICATION STRUCTURE All employees shall be classified by the employer into one of the levels contained in this clause in accordance with the employee's skills, responsibilities, qualifications and duties. Where an employee believes they have been wrongly classified the matter shall be dealt with in accordance with the dispute settling procedure set out in clause 11 (or clause 16.5 as appropriate). 15.1 Definitions 15.1.1 Children's Services Employee Level 1 This is an employee who has no formal qualifications but is able to perform work within the scope of this level. This employee will work under direct supervision in a team environment, and will receive guidance and direction at all times. This employee will receive structured and regular on-the-job training to perform the duties expected at this level. Normally, an employee at this level will not be left alone with a group of children. An employee at this level is being introduced to the working environment and is undertaking the following indicative duties: · Learning and implementing the policies, procedures and routines of the service. · Learning how to establish relationships and interacting with the children. · Learning the basic skills required to work in this environment with children. · Giving each child individual attention and comfort as required. · Basic duties including food preparation, cleaning, or gardening. A Level 1 employee shall progress to the next Level after a period of one year or earlier if the employer considers the employee capable of performing the work at the next level or if the employee actually performs work at the next level. 15.1.2 Children's Services Employee Level 2 This is an employee who has completed 12 months in Level 1, or a relevant AQF Certificate II, or in the opinion of the employer has sufficient knowledge and experience to perform the work within the scope of this level. An employee at this level has limited knowledge and experience in children's services and is expected to take limited responsibility for their own work. A Level 2 employee undertakes the following indicative duties: · Assist in the implementation of the children's program under supervision · Assist in the implementation of daily care routines · Develop awareness of and assist in maintenance of the health and safety of the children in care · Give each child individual attention and comfort as required · Understand and work according to the centre or service's policies and procedures · Responsible for food preparation, cleaning, gardening or general maintenance under the guidance of the Assistant Director/Director. · Demonstrate knowledge of hygienic handling of food and equipment. 15.1.3 Children's Services Employee Level 3 15.1.2(a) This is an employee who has completed AQF Certificate III in Children's Services or an equivalent qualification or alternatively this employee shall possess, in the opinion of the employer, sufficient knowledge or experience to perform the duties at this level. An employee appointed at this level will undertake the same duties and perform the same tasks as a CSE Level 2 employee, and will undertake the following additional indicative duties: · Assist in the preparation, implementation and evaluation of developmentally appropriate programs for individual children or groups; · Responsible for recording observations of individual children or groups for program planning purposes for qualified staff · Under direction, work with individual children with particular needs. · Assist in the direction of untrained staff · Undertake and implement the requirements of quality assurance. · Work in accordance with food safety regulations 15.1.3(b) Subject to this Award, an employee at this Level is entitled to incremental progression to pay level 3.3. However: · an employee at this level who has completed an AQF Diploma in Children's Services or equivalent, and who applies skills and knowledge acquired beyond the competencies required for AQF Certificate III in the on-going performance of their work, must be paid no less than the rate prescribed for pay Level 3.4. Any dispute concerning an employee's entitlement to be paid at pay Level 3.4 may be referred to a Board of Reference appointed under clause 16.5.7 (b). A Board of Reference may require an employee to demonstrate to its satisfaction that the employee utilises skills and knowledge above those prescribed for Level 3 but below those prescribed for Level 4. 15.1.4 Children's Services Employee Level 4 This is an employee who has completed a Diploma in Children's Services or equivalent as recognised by licensing authorities and is appointed as the person in charge of a group of children in the age range from birth to 12 years. An employee appointed at this level will take on the same duties and perform the same tasks as a CSE Level 3 and undertake the following additional indicative duties: · Responsible, in consultation with the Assistant Director/Director for the preparation, implementation and evaluation of a developmentally appropriate program for individual children or groups of children in care. · Responsible for the direction and general supervision of other employees up to CSE Level 3. · Responsible to the Assistant Director/Director for the supervision of students on placement. · Ensure a safe environment is maintained for both staff and children. · Ensure that records are maintained accurately for each child in their care. · Develop, implement and evaluate daily care routines. · Ensure the centre or service's policies and procedures are adhered to. · Liaise with families. 15.1.5 Children's Services Employee Level 5 This is an employee who has completed an [AQF 5] Diploma in Children's Services or equivalent and is appointed as either an Assistant Director of a service, or a Children's Services Coordinator. An Assistant Director will take on the same duties and perform the same tasks as a CSE Level 4 and be responsible for the following additional indicative duties: · co-ordinate and direct the activities of employees engaged in the implementation and evaluation of developmentally appropriate programs · contribute, through the Director, to the development of the centre or service's policies · coordinate centre or service operations including Occupational Health and Safety, program planning, staff training · take responsibility for the day-to-day management of the centre or service in the temporary absence of the Director and for management and compliance with licensing and all statutory and QIAS issues · generally supervise all employees within the service A Children's Services Coordinator undertakes additional responsibilities including coordinating the activities or more than one group, supervising staff, trainees and students on placement, and assisting in administrative functions. 15.1.6 Children's Services Employee Level 6 - Director A Director is an employee who holds: · a relevant Degree, or · an AQF Advanced Diploma, or · a Diploma in Children's Services, or · a Diploma in Out of Hours Care, or · is a person possessing such experience, or holding such qualifications deemed by the employer to be appropriate to the position, and is appointed as the Director of a Service and is responsible for the overall management and administration of the service with the following additional indicative duties: · supervise the implementation of developmentally appropriate programs for children · recruit staff/home-based child carers in accordance with relevant regulations · maintain day-to-day accounts and handle all administrative matters · ensure that the centre or service adheres to all relevant regulations and statutory requirements · ensure that the centre or service meets or exceeds quality assurance requirements · liaise with families and outside agencies · formulate and evaluate annual budgets · liaise with management committees or proprietors as appropriate · provide professional leadership and development to staff · develop and maintain policies and practices for the centre or service. 15.1.6(a) Director Level 1 A Director Level 1 is an employee appointed as the Director of a service licensed for up to 39 children and is paid at the Level 6.1 to 6.3 salary range. 15.1.6(b) Director Level 2 A Director Level 2 is an employee appointed as the Director of a service licensed for between 40 and 59 children and is paid at the Director Level 6.4 to 6.6 salary range. 15.1.6(c) Director Level 3 A Director Level 3 is an employee appointed as the Director of a service licensed for 60 or more children and is paid at the Level 6.7 to 6.9 salary range. 15.2 Preparation Time A qualified full-time employee at Level 4 or above who is appointed by the employer to be responsible for the planning and implementation of the planned programme for the children in the Centre shall be entitled to two hours per week preparation time. Such time shall be taken at a time agreed by the employer and shall be free from other duties. 15.3 Examination leave Employers shall be granted leave with full pay in order to travel to an attend child care examinations relevant to this clause and approved by the education institution. Provided that when an afternoon examination is scheduled an employee shall be allowed the morning for the examination study if so required by the employee. 4. By deleting clause 16 and by inserting instead the following: 16. WAGE RATES 16.1 Adult employees Subject to clause 16.5 of this Award, an adult employee shall be paid according to the classification in which that employee is employed under this award, not less than the following weekly wage: Classification Pay level Relativity to C10 Weekly rate $ 16.1.1 Children's Services Employee Level 1 on commencement 1.1 83.1% 480.60 16.1.2 Children's Services Employee Level 2 on commencement after 1 year 2.1 2.2 87.9% 92.4% 502.90 523.80 16.1.3 Children's Services Employee Level 3 on commencement after 1 year in the industry after 2 years in the industry 3.1 3.2 3.3 3.4 100% 105% 110% Note 1 561.20 584.40 605.70 645.05 Note 1: Pay Level 3.4 is fixed at the mid-point between the Level 3.3 rate and the Level 4.1 rate. 16.1.4 Children's Services Employee Level 4 on commencement after 1 year in the industry after 2 years in the industry 4.1 4.2 4.3 Relativity to C5 100% 102% 104% 684.40 696.20 707.90 16.1.5 Children's Services Employee Level 5 on commencement after 1 year in the industry after 2 years in the industry Note: An Assistant Director who has completed an Advanced Diploma (AQF 6) must be paid no less than 5.1 5.2 5.3 5.4 106.1% 108.1% 110.1% Note 2 720.30 732.10 743.80 746.90 Note 2: Pay Level 5.4 has a 145% relativity to the Pay Level 3.1 [C10] rate. 16.1.6 Children's Services Employee Level 6 16.1.6(a) Director A on commencement after 1 year in the industry after 2 years in the industry 16.1.6(b) Director B on commencement after 1 year in the industry after 2 years in the industry 16.1.6(c) Director C on commencement after 1 year in the industry after 2 years in the industry 6.1 6.2 6.3 6.4 6.5 6.6 6.7 6.8 6.9 128.6% 130.6% 132.6% 138.7% 140.3% 142.3% 144.4% 146.4% 148.4% 850.70 862.45 874.20 910.10 919.50 931.30 943.60 955.40 967.20 Note 3: A Director or Assistant Director who holds a Graduate Certificate in Child Care Management or equivalent will be paid an all-purposes allowance, calculated at 5 % of the weekly rate for Assistant Director (Pay Level 5.3), eg 37.20 16.2 Arbitrated safety net adjustment The rates of pay in this award include the arbitrated safety net adjustment payable under the Safety net review - wages May 2004 decision [Print PR002004 ]. This arbitrated safety net adjustment may be offset against any equivalent amount in rates of pay received by employees whose wages and conditions of employment are regulated by this award which are above the wage rates prescribed in the award. Such above award payments include wages payable pursuant to certified agreements, currently operating enterprise flexibility agreements, Australian workplace agreements, award variations to give effect to enterprise agreements and overaward arrangements. Absorption which is contrary to the terms of an agreement is not required. Increases made under previous National Wage Case principles or under the current Statement of Principles, excepting those resulting from enterprise agreements, are not to be used to offset arbitrated safety net adjustments. 16.3 Minimum rates adjustment Consequent upon decisions of a Full Bench of the Commission on 13 January 2005 [ PR954938 ] and 13 April 2005 [ PR957259 ] the rates of pay in this award have been adjusted by application of the principles established in the August 1989 National Wage Case [Print H9100] and in the Supplementary Paid Rates Review Decision of 14 October 1999 [Print S0105 ]. The rates of pay set out in column 16.1 are the minimum rates payable to employees from the first pay period to commence on or after {insert date} 16.4 Junior employees 16.4.1 Junior employees employed as Children's Services Employee Level 1 shall be paid not less than in accordance with the following percentages of the Level 1 rate for each age level: Under 17 years of age 50% Under 18 years of age 60% Under 19 years of age 70% Under 20 years of age 80% Under 21 years of age 90% 16.4.2 Junior employees employed as Children's Services Employee Level 2 shall be paid not less than in accordance with the following percentages of the Level 1 rate for each age level: Under 17 years of age 55% Under 18 years of age 65% Under 19 years of age 75% Under 20 years of age 85% Under 21 years of age 95% 16.4.3 Junior employees employed as Children's Services Employee Levels 3,4 and 5 must be paid as adults. 16.5 Translation arrangements and Savings provision 16.5.1 Savings No employee shall suffer a reduction in wages and/or allowances as a result of the insertion of the new classification structure into this award on {insert date of order} arising from the decisions of a Full Bench of the Commission dated 13 January 2005 [ PR954938 ] and 13 April 2005 [ PR957259 ] 16.5.2 Commencement Subject to Principle 12 of the Commission's Statement of Principles [ PR002004 , page 103] and the provisions of this clause, the rates of pay set out in this award will apply on and from {insert date}. 16.5.3 Translation 16.5.3(a) An employee whose duties fall within the classification structure set out in this award should confer with his or her employer and seek to reach agreement on the translation of the employee to the terms of this award. 16.5.3(b) Employees will translate to the new classification structure on the basis of the following principles: · except where otherwise provided in this clause, where an existing employee is appointed to a higher classification than they currently enjoy, they will translate to the "on commencement" rate for that classification; · where an existing employee retains their existing classification, they will retain their current incremental position in that classification based on their years of experience in the industry; · new employees, or current employees who are subsequently reclassified to a higher grade, will be paid at the "on commencement" rate for the classification to which they are appointed and will progress through the scale according to the factors listed in clause 16.6. 16.5.3(c) Despite clause 16.5.3(b): · Existing CCW1 employees will be classified according to their duties and their years of experience in the industry. Thus an existing CCW1 employee with more than two years experience will be classified at the new CSE Level 2.2. A CCW2 employee with more than one year but less than two years experience will be classified at CSE Level 2.1. · Existing CCW2 employees will be classified as either CSE Level 2 or CSE Level 3 employees depending on their qualifications and/or duties and their experience in the industry. Thus a Certificate III employee will be classified as Level 3, and one without Certificate III will (unless their duties fall within the Level 3 descriptors, in which case they will be classified as Level 3) be classified as Level 2. Both will be entitled to immediate recognition of their years of experience in the industry (ie, a Certificate III employee with more than two years of experience will be classified at CSE Level 3.3). · Existing CCW3 employees will, depending on their qualifications and duties, be classified at either CSE Level 3, 4 or 5. Each will be entitled to immediate recognition of their years of experience in the industry. · Existing CCW4 employees will, depending on their qualifications and duties, be classified as either CSE Level 4 or 5 employees. Each will be entitled to immediate recognition of their years of experience in the industry 16.5.4 Where the employee's current rate of pay is below the rate of pay specified in this Award for the classification appropriate to the employee, the following provisions will apply: 16.5.4(a) From { insert date A} the employee must be paid (in addition to the employee's current rate of pay) one third of the difference between the employee's current rate of pay and the appropriate classification rate for the employee ("the first instalment", which incorporates the May 2004 Safety Net Review - Wages decision adjustment). However, where the employee's existing rate of pay is $20 or less per week below the appropriate classification rate for the employee, the employee must be paid the full appropriate classification rate from { insert date A }. In this circumstance, sub-paragraphs 16.5.4(b) and (c) will not apply to the employee. 16.5.4(b) From {insert date B} the employee must be paid (in additional to the employee's current rate of pay), two-thirds of the difference between the employee's current rate of pay and the appropriate classification rate for the employee ("the second instalment"), or the difference between the employee's rate of pay after the first instalment referred to in 16.5.5(a) and the full appropriate classification rate if that difference is less than $20 per week. 16.5.4(c) From {insert date C}, the employee must be paid the appropriate classification rate for the employee ("the final instalment"). 16.5.5 The employer and employee can agree to earlier implementation dates for wage increases than those set out in 16.5.4. 16.5.6 In the event that the employer and the employee cannot reach agreement as envisaged by 16.5.3, or in the event that a dispute arises as the transitional arrangements referred to in this clause, the procedures specified in clause 11 - Procedure to avoid industrial disputation must be followed. 16.5.7 Despite 16.5.6 and clause 11: 15.6.7 (a) an employer may apply to the Commission pursuant to Principle 12 of the Commission's Statement of Principles to seek variation to the phase-in period for the new minimum rates of pay provided for in this award; 16.5.7 (b) a Board of Reference shall be established from time to time for the purpose of resolving any dispute or difficulty or likely dispute or difficulty in the application of clause 15.1.3(b) of this Award. The Board shall be constituted by a Chairperson who shall be a member of the Australian Industrial Relations Commission and at least two other members, one of whom is nominated by the Liquor, Hospitality and Miscellaneous Union and the other nominated by the employer respondent to the award affected by the dispute or difficulty or likely dispute or difficulty. Before proceedings commence, the Chairperson shall seek undertakings from the parties appearing before the Board that any decision, subject to the terms of the Act, shall be final. Any decisions of a Board of Reference made pursuant to this clause shall be reduced to writing and published by the Chairperson. 16.6 Incremental progression 16.6.1 Progression from one level to the next within a classification is subject to a children's services employee meeting the following criteria: competency at the existing level; 12 months experience at that level (or in the case of employees employed for 19 hours or less per week, 24 months' experience) and in-service training as required; demonstrated ability to acquire the skills which are necessary for advancement to the next pay point level. 16.6.2 Where an employee is deemed not to have met the requisite competency at their existing level at the time of appraisal, his/her incremental progression may be deferred for periods of three months at a time provided that: the employee is notified in writing as to the reasons for the deferral; the employee has, in the twelve months leading to the appraisal, been provided with in-service training required to attain a higher pay point; following any deferral, the employee is provided with the necessary training in order to advance to the next level. 16.6.3 Where an appraisal has been deferred for operational reasons beyond the control of either party, and the appraisal subsequently deems the employee to have met the requirements under this clause, any increase in wage rates will be back paid to the 12 month (or 24 month) anniversary date of the previous incremental progression. 16.6.4 An employee whose incremental advancement has been refused or deferred may seek to have the decision reviewed by lodging a written request through the dispute resolution procedure in clause 11 of this award. If the review is successful, then the incremental advancement will be backdated to the original due date. The review process must be completed within two months of the request for the review being made. 5. By inserting a new subclause 19.5 to read as follows: 19.5 First Aid Allowance 19.5.1 Where an employer appoints an employee to act as a first aid person pursuant to the Victorian WorkCover Authority's Code of Practice (No. 18) First Aid in the Workplace, and such employee has undertaken a first aid course and is the holder of a current recognised first aid qualification such as a certificate from the St John's Ambulance, the Australian Red Cross or similar body, the employer shall pay the employee an allowance of $ 2.30 per day. 19.5.2 Where an employer requires an employee below Level 3 to administer first aid to children within the employee's care and the employee is the current holder of a recognised first aid qualification such as a certificate from the St John's Ambulance, the Australian Red Cross or similar body, the employer shall pay the employee an allowance of $6.32 per day. However, an employee below Level 3 engaged in out-of-school hours care and appointed as First Aid person shall be paid 83 cents per hour additional to his/her ordinary rate of pay 19.5.3 The employer shall reimburse employees for the demonstrated costs of keeping their first aid qualifications up to date. Employees should not incur such costs without the prior approval of their employer. The employer must not unreasonably withhold approval. B. The above variation takes effect on and from {insert date} and remains in force for 12 months. 1 PR954938 per Ross VP, Marsh SDP and Deegan C. 2 PR957259 per Ross VP, Marsh SDP and Deegan C. 3 See Regulations 3.6 and 3.20 of the ACT Centre Based Children's Services Conditions - August 2000 . 4 The LHMU contends that the word "and" as it appears in the Level 5 criterion is disjunctive: see Hancock v Sanctuary Farm Child Care Centre and Kindergarten Pty Ltd [2000] SAIRC 30, (2000) 122 IR 122, per Cawthorne and Gilchrist DPJJ at paragraph 41, and McCusker DPJ at paragraph 84 (citing Ormerod v Blaslov (1989) 52 SASR 263). In Hancock, the SA Industrial Relations Court considered Level 4 and Level 5 descriptors contained in the Child Care (South Australian) Award. These were in similar terms to those in the current ACT Award . 5 C0148CRN Print G4877, 17 November 1986 per Connell C. 6 C0173CRN Print G0220, 19 September 1985 per Donaldson C. 7 Print J4316, per Ludeke J, Marsh DP and Laing C. 8 See PR954938, the structure referred to by the ACT Workforce Planning Report set out at paragraph 350 (p. 89), and its endorsement at paragraph 377.6 (p. 98). 9 Exhibit E4 tendered during proceedings on 31 March 2005, at page 38. 10 Ibid . 11 See QGIG 135, 22 December 1990 at p.1135. 12 PR954938 at paragraph 144. 13 PR954938 at paragraph 377.4 (page 98). 14 Exhibit E8. 15 Exhibit E9. 16 Exhibit E10. 17 See Attachment B to Exhibit U4 at p.7 and Mr Fazldeen's evidence. 18 At PN1175 of Transcript of final hearing 13 June 2003. 19 PR933309 refers. 20 See generally paragraph 13.4 of the Employers' written submissions. 21 Print S5616 . 22 PR954938 at paragraph 357. 23 Creating Choice: employment and the cost of care , Taskforce on Care Costs, Policy Research Paper, paragraph 4.3, p 14. 24 See Exhibit E11. 25 Ibid and see Exhibits U6, U7, U8 and U9. 26 Exhibit U4, Attachment B at p.3. 27 Section 88B(2). 28 See s.88B(3)(a). 29 Exhibit LHMU6 (LHMU's written submissions in Victoria) at Attachment Vic 2. 30 Exhibit U3. 31 See proposed clause 5.5.2(a)(iii) of the ACT Award . 32 Similar provisions are made (in Regulations 3.10 and 3.13(c)) in the ACT Centre Based Children's Services Conditions - August 2000. 33 AW789529 Print Q0444 , 1 July 1998 per Marsh SDP (as varied). 34 PR957259 at paragraph 92. 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